What Are Human Rights? (2): Rights Before and Above the Law

You are a human being. You have rights inherent in that reality. You have dignity and worth that exists prior to law. Lyn Beth Neylon

Rights do indeed exist before and above the law. However, the role of natural rights in moral claims, important as it is, is not enough. Only the state, by way of the constitution, the laws, the judges and the police can effectively guarantee human rights and can enforce them with a good chance of success (something which cannot always be said of moral claims; power is often more successful than persuasion). We can enforce and therefore enjoy our natural rights only because the state creates and protects legal rights and gives everybody a legal personality – a legal person is an entity subject to the law and holding legal rights and duties enforceable by a judge – on top of everybody’s natural personality (the latter is the basis of the common values used as a justification of human rights).

The state gives a tangible reality to our rights because it translates our natural rights into legal rights which can be enforced by an executive and a judicial power.

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