What Are Human Rights? (52): Legal Rights, and Something More

Ask a lawyer and she will say that human rights are a kind of law that people can appeal to in a court of law. Ask a member of Amnesty International and she will say that human rights are moral claims about what people – all people, everywhere – are entitled to on the basis of their humanity, even if the laws of their country don’t give them what they are entitled to. Ask an anthropologist and she will say that human rights are moral or legal claims that are part of a certain culture somewhere.

And all of them are right, of course.

Human rights are, in many cases, legal rights, together with other legal rights which aren’t human rights (for example the right to acquire a driver’s license at the age of 18). However, some human rights in some countries in particular aren’t yet recognized in the local legal system. In that case, rights are “mere” moral claims, rhetorical claims one could say, with an uncertain effectiveness compared to legal rights. Perhaps these moral claims are “legal rights in waiting”. Indeed, many moral claims are uttered in an attempt to turn them into legal claims if at all possible. An example could be the right to free speech in China.

However, not all moral claims have this intention. It’s not always obvious that the law is the best means to foster respect for moral claims. The right to work, for instance, may be better served by sound economic policy than by its transformation into a legal right. In the case of some moral claims – and now I turn to point 3 in the drawing above – it’s even wrong to try and turn them into laws. A woman’s right to equal standing and voice in her household for example – which is a right based on the right not to be discriminated – should probably not be turned into a legal right because we don’t want the law to mess with people’s households.

The fourth point in the drawing refers to morality not in the prescriptive but in the descriptive sense: rights can be part of a culture’s accepted ethical standards. In which case it may or may not also be part of that culture’s legal system (if the right is deeply entrenched in the culture it may not be necessary to recognize it in law).

Each of these four types of human rights are equally “real”. You sometimes hear the argument that only legal rights are “real” rights, and that moral rights – or natural rights, or human rights or whatever – are “nonsense upon stilts“. This is a strange assertion, when you think about it. Moral claims can be quite effective. Amnesty International and others have done great work over the years. Conversely, many legal rights are less effective than we tend to think. Most jurisdictions have incorporated the right to life through laws against murder, manslaughter, aggressive war etc. And yet murder and war are still quite common.

The four types of rights are connected and interdependent. Human rights are both the children and the parents of law. Law is often an effective means to make rights real, and in that sense rights are the children of the law. But laws are often legal translations of pre-existing moral claims, which makes rights the parents of the law. Human rights are also the children and the parents of culture. It’s undeniable that rights have developed in cultural contexts that were amenable to rights (and I’m not only talking about the West, by the way). Conversely, it’s equally true that rights create their own culture. Something similar is the case for morality: rights are the children of morality because they are means to realize certain moral values, but at the same time they become moral values themselves.

More posts in this series are here.

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