Topics Justice

Question Are rights ranted to us by government? (Is saying that "I have a right to free speech" simply a way of saying that my government permits me to speak freely?) Or do we have rights independently of government, such that institutions like freedom of speech amount to a recognition by government of such rights?

Accepted:
May 18, 2011

Comments

Some rights are granted to us by our government, such as the right to drive a car for example. But there are others which governments themselves agree are not granted by them but exist independently. Various governmental documents (such as the Declaration of Independence) speak of "unalienable" or “inalienable” rights, for example. An inalienable right is a right that its holders cannot lose, not through anything they do themselves (waiver or forfeiture), nor through anything others do, for instance through an alteration of the law. In a similar way, the human rights that have emerged in the last 65 years are conceived as not merely part of the law but also a moral standard that all law ought to meet and a standard that is not yet met by much existing law in many countries. Law has incorporated human rights in a way that points beyond itself: to a normativity that does not depend on the law for its existence and cannot be revised or repealed by legislative or judicial fiat or by other law-making mechanisms such as treaties or international custom. This point is prominently expressed in many legal documents, for instance in the very first words of the Universal Declaration of Human Rights, which call for the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family.” With this formulation, echoed in frequent appeals to “internationally recognized human rights,” governments present themselves as recognizing certain rights in law rather than as creating these rights from scratch. Human rights law is not declaring itself the source of human rights, but, on the contrary, asserting that all human beings have certain human rights regardless of whether these are recognized in their jurisdiction or indeed anywhere at all. Human rights are set forth in the law in a way that implies that these rights have an independent existence and thus existed before they were codified and would continue to exist even if governments were to withdraw their legal recognition.