Do Non-Legal Rights Really Exist?
Let me start in the middle and consider whether non-legal rights really exist. On a formal, analytical level, the existence of a right presupposes the existence of a rule. Alternatively put, the existence of a right is the existence of a rule.5 Thus to the query, ‘where do rights come from?’ the answer is straightforward — ‘from a rule which imposes obligations on others (be they individuals, groups or institutions).’ In the case of legal rights then, the rules are there for all to see.
They can be found in a statute (e.g. rules setting out the entitlement to legal aid or the liability to pay tax), extracted from a line of cases (e.g. rules about negligence or habeas corpus), seen to have grown up from customary practices (e.g. rules governing the need for consideration in making an oral contract6), or set out broadly and generally in a Bill of Rights for the judiciary to make more certain, specific and clear in the various cases that arise (e.g. whether advertising is to qualify as protected free speech). Therefore to the extent that rules exist in some legal form or other,7 the origin of the corresponding rights causes no difficulty.But in the case of non-legal rights there are, ex hypothesi, no legal rules in existence (or, more broadly, no legal rules that are enforced). Perhaps one lives in a country where legal rules allowing ‘basic’ free speech or religious tolerance, or others precluding torture or incarceration without trial, simply do not exist. Or perhaps, to eliminate any alleged Western bias, someone wishes to claim a right to work, say in New York or Hong Kong, where there is clearly no legal rule to the effect that people, willing and able, must be given jobs. In all these cases the supposed right being claimed is a non-legal right. There simply is no corresponding legal rule establishing the right.8 And thus the essential question arises: Do non-legal rights really exist and if so, where do they come from?
It must be noticed,9 firstly, that having moved outside the realm of legal rights and legal rules the correlative explanation of rights is of little value. That the existence of a moral or non-legal right requires the existence of a moral or non-legal rule merely shifts the focus slightly but tells us nothing of from where these non-legal rules might originate.
Where does the rule come from that says everyone has the right to free speech in China or that says that everyone has the right to work in New York and Hong Kong or that said that slavery was wrong in Ancient Greece? Whereas the moral realist might respond by pointing to eternal relations of fitness or God’s prescripts or the fruits of reason or self-evident intuitions or certain ‘fundamental’ human interests10 or single, best (indeed ‘right’11) interpretations, the moral sceptic has already rejected such responses as untenable. And once moral values are held not to be mind-independent, it follows that there can be no mind-independent, objective moral rules or rights. For the moral sceptic then, non-legal rights do not exist from any perspective that insists on their existence being linked to ‘true’, ‘real’, mind-independent answers or statuses. Non-legal rights simply do not exist, answers the sceptic, in the sense required by perspective (ii). Nevertheless, I think that the moral sceptic can say something more than this about non-legal rights. Of course for him there cannot be solid, tangible, non-legal rights in the same way there are solid, tangible, legal rights.12 But still, there is more for the moral sceptic, or at least an avowedly Humean one like me, to say about non-legal rights than to issue a cursory denial of their existence.b)
More on the topic Do Non-Legal Rights Really Exist?:
- Acceptance that there simply are no transcendent, objective, mind-independent moral values would seem to bear on how one comprehends rights, more particularly moral or non-legal rights.
- Do Non-Legal Rights Contingently Emerge?
- Chapter Nine Non-Legal Rights: Human or Humean?
- In the Roman legal system, all private and public legal disputes were initiÂated by individuals against other individuals, all of whom became litigants once the matter was brought before the magistrate.
- A concept of legal validity that leaves out the elements of social efficacy and correctness of content was classified above as a concept of legal validity in a narrower sense.
- J) Bills of Rights
- Although new work on women's contributions is on the horizon, international lawyers have written relatively little history of their discipline from a gender perspective, whether on legal subjects or actors in international law, or on gender relations as a way of signifying or structuring legal power.
- The European Convention on Human Rights
- European Convention on Human Rights
- The European Court of Human Rights
- The status of Convention rights in English law
- From the Treaty of Maastricht to the European Charter of Fundamental Rights
- NATION-STATES AND UNIVERSAL RIGHTS AFTER INDEPENDENCE
- A summary of Convention rights