THE OBLIGATION OF THE STATE TOWARD INDIVIDUALS

Abstract

This chapter examines some of the very sensitive questions about the obligation of the state toward individuals within it, particularly the very weak and deprived sectors of society. With regard to these sectors there is always the fear of either overprotecting their rights on the one hand, or of arbitrary, invasive, and even offensive treatment by the state, on the other. The state, per the Parens Patriae1 doctrine is supposed to guarantee not only the freedoms and negative rights of its residents, but also their positive rights. However, occasionally it appears that the desire to fulfill this duty and protect certain rights and freedom of a particular individual, may cause harm or violate some other rights. This chapter will deal with certain issues where the proper extent of the state’s obligations (if there are any) is not very clear, and will try to suggest limits and restrictions to this obligation. The specific cases to be examined are those of fetuses, minors, and mentally retarded people: three vulnerable sectors in society. In each case the examined rights will be different, but they illustrate the complexity of the general question about the general obligation of the state toward individuals within it— particularly the weak and the vulnerable. At times the principle obligation of the state is to provide its residents with certain capabilities and skills, but there are instances where this obligation requires the state simply to abstain (ensuring that others will abstain as well) from any interference with one’s liberty, and to respect the individual’s freedom.