Do human rights exist beyond the law?

Great Debates
1

Does a person have any rights beyond the legal rights that he can have enforced? I am not sure what people mean when they talk about basic human rights. For example, saying that the American slaves had their human rights violated. What does this mean? What rights did they have? If they had no remedy (which they clearly did not), what does it mean to say they had a right? Where do human rights come from if not from the enforceable law?

In American, the founding fathers in the DoI, announced that people had basic rights, but offered no evidence for this position. They only stated it as an axiom. Which would still leave the questions of whether these rights actually exist and their source and what it means if they exist without an enforcement mechanism.

Are non-legally enforceable human rights just empty rhetoric?

2

This is obviously a philosophical question, and different philosophies have come up with different answers.

There was a philosophical school in Europe during the enlightenment called “liberalism” (often now in the US now called “classical liberalism” so as to distinguish it from modern American political liberalism, which, along with modern American political conservativism, are both offshoots of it), of which the majority of the founding fathers belonged to. Liberalism says, in part, that there are certain rights intrinsic to humanity, like the right to life, the right to liberty, the right to property, the right to self-government, and so on. These rights come from God or from nature, and they are a fundamental part of being human.

The classical liberals realized, of course, that governments could repress people, and that people didn’t always have these rights in practice, but all that meant was that the government was acting immorally, and illegitimately.

3

It is more than a philosophical question, it is also a question of what we use the word “right” to mean.

Legal rights are a pretty clear concept.

Rights given to us by supernatural spirits and the like also seem like a pretty clear concept, if a difficult one to actually use for anything.

But, what about the notion that we should be able to enjoy access to something, such as medical care, or fresh air, or freedom of thought? This seems like a kind of hypothetical right, a shorthand way of expressing what we wish the world was like.

And there are also things that most of us accept ought to be rights, or more basically a sense of fairness (which experiments keep showing many other species also have). So, for instance, if we agree to trade your tuna sandwich for my peanut butter, and I give you the peanut butter, I have a right to the tuna sandwich. If we use grapes and bananas, we can have chimpanzees demanding their rights with this one.

4

One school of thought (to which I subscribe) is that all persons have rights up to the point that authority deprives them of such. For example, Americans don’t so much have a right to free speech, as they have the right not be arrested for thier speech. Or put more simply: Governments don’t create rights, they only take them away.

5

>For example, Americans don’t so much have a right to free speech, as they have the right not be arrested for thier speech.

Don’t Americans have rights that are more affirmative than this? In the specific example of free speech, for instance, if some non-government group tried to prevent a person from exercising their free speech rights, mightn’t the government act to change that? Regrettably it’s a bit early to come up with a good example scenario.

6

[QUOTE=Napier]
>For example, Americans don’t so much have a right to free speech, as they have the right not be arrested for thier speech.

Don’t Americans have rights that are more affirmative than this? In the specific example of free speech, for instance, if some non-government group tried to prevent a person from exercising their free speech rights, mightn’t the government act to change that? Regrettably it’s a bit early to come up with a good example scenario.
[/QUOTE]
Doesn’t everyone have the right to the government’s emergency services ? I mean, I doubt the fire department can refuse to save someone’s house because they’re black or Catholic or whatever. It may or may not officially be a right, but it seems to me to be one.

7

[Quote=Napier]
Don’t Americans have rights that are more affirmative than this? In the specific example of free speech, for instance, if some non-government group tried to prevent a person from exercising their free speech rights, mightn’t the government act to change that? Regrettably it’s a bit early to come up with a good example scenario.
[/quote]

If a radio station decides to boycott the Dixie Chicks for dissing George W Bush, no authority under the US government can force them to put them on the air. And I can expel you from my house for annoying me with your opinions. OTOH, if you just stand on the public street corner saying GW is a moron, all that any other citizen can do is stand next to you and argue the contrary, he can’t use force to shut you up, but that’s just because as a fellow citizen he has no authority to assault you w/o proportionate provocation. And if he gets enough of his friends they can try to shout you down and away, as long as no public riot ensues.

[QUOTE=Der Trihs]
Doesn’t everyone have the right to the government’s emergency services ? I mean, I doubt the fire department can refuse to save someone’s house because they’re black or Catholic or whatever. It may or may not officially be a right, but it seems to me to be one.
[/QUOTE]

This is more into the realm of entitlements and of affirmative rights, which themselves are matters of policy. In this case, the state cannot deny you a service it already provides w/o a justified cause, but the state does not have to provide the service in the first place, i.e. you do not have an* inherent * “right” to the existence of a public firefighting service, but once it does exists you do have a “right” to access to it under equal conditions, there being a civil right to equal protection of law.

The OP as I read it asks about whether there really are fundamental rights, to use Jefferson’s phrase, which are “inalienable because they’re endowed by the Creator”.

8

Rousseau said, “Man is born free and is everywhere in chains.” I’m still not sure if all the signers of the Declaration of Independence or the Constitution genuinely believed that God had bequeathed rights to us; I suppose most or at least some of them did. I personally believe that the law and the rights which it ensures are a human invention - perhaps divinely inspired, but nonetheless thought of, written down by, voted upon, adopted by, and either upheld or violated by human beings.

9

I sure hope humanity functions with a working concept of rights as proper things to encourage, independently of any assumption that some god wanted it to be that way.

What does it mean that God bequeathed rights to us? It’s not as if God lets us do some things and blocks us from doing others. It’s also not as if God prevents other people from preventing us from doing things. How do you tell the difference between the scenario where God has bequeathed a right to us, and the one where he hasn’t?

10

Yes and no. We all have the right to life, liberty and property, however in the absense of law, it is easy to see how one might extend their own rights to conflict with the rights of others. For example, does one’s right to life allow them to arbitrarily kill potential rivals for resources so that their own chances for survival are improved? In a totally natural state, yes. But so can they.

We exist in a society with laws so that we might all exercise our rights without impinging on the rights of others. The implied social contract is that if we are to participate in that society, we expect that it’s laws and rights should be applied as evenly as possible to all it’s members.

11

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

The answer is YES. Certain human rights do exist regardless of what the law says, and their existence is self-evident. The fact that certain people deny their existence does not make them any less real.

12

[QUOTE=Captain Amazing]
This is obviously a philosophical question, and different philosophies have come up with different answers.

There was a philosophical school in Europe during the enlightenment called “liberalism” (often now in the US now called “classical liberalism” so as to distinguish it from modern American political liberalism, which, along with modern American political conservativism, are both offshoots of it), of which the majority of the founding fathers belonged to. Liberalism says, in part, that there are certain rights intrinsic to humanity, like the right to life, the right to liberty, the right to property, the right to self-government, and so on. These rights come from God or from nature, and they are a fundamental part of being human.

The classical liberals realized, of course, that governments could repress people, and that people didn’t always have these rights in practice, but all that meant was that the government was acting immorally, and illegitimately.
[/QUOTE]

I think this is more important than it appears. The Declaration of Independence did not assert the inalienable rights in a vacuum; it was a consensus opinion of educated people of the time that the Droits de l’Homme did in fact exist, derived from something beyond man (whether Yahweh Lord of Hosts, the First Principle or Ground of All Being, the consequents of Nature, or a Social Compact intended to impose order on a natural order that was the war of each against all, in a natural life which was nasty, brutish, and short, does not matter – whichever was the truth, it was conceded that those rights were ontologically prior to the governments structured to regulate human affairs and to defend them.

The point to the Declaration, as a pronouncement in political philosophy, was this: Those rights exist. A proper government protects and defends them, defends it citizens against those who would abridge or infringe upon them. George III and his Government led by Lord North have, far from protecting us from their abridgment, itself proceeded to abridge them. as enumerated in the body of the Declaration. Therefore, Americans are justified in throwing off an abusive government and to substitute for it a confederation which will govern by the consent of the governed and protect those rights.

In that regard, it’s interesting and poignant that 2.5" is the OP and Der Trihs has weighed in. Both hold controversial views that are not congruent to the majority here on the SDMB. But, please note, there is common consent that they have every right to express their honestly held opinions, however much others may disagree, without let or hindrance – they have a freedom to speak their minds.

And that’s exactly the point. However much DT and I may disagree on matters of religion, we both have the right to say what we think, defend it as best we can, without fear of recrimination.

13

Thanks Poly really enjoyed that post.
It’s hard to say if human rights exist beyond he law but what does seem apparent to me is that the quest for some basic rights, even in finding a more exact definition, does exist within mankind. The concept that their are certain human rights , such as life, liberty, and the pursuit of happiness, has driven mankind forward for centuries has it not? A race of people are declared inferior and temporarily dominated but asserts itself and shows it is not inferior. All the gradual social changes that have come with such struggle and are still going on seem to spring from within the human spirit.

If it is just an abstract concept rather than a reality, it is a powerful one.

14

[QUOTE=JThunder]
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights…”

The answer is YES. Certain human rights do exist regardless of what the law says, and their existence is self-evident. The fact that certain people deny their existence does not make them any less real.
[/QUOTE]
Surely “self-evident” means precisely that, that they are evident to one’s self. If you accept that some people deny their existence - and assuming they aren’t lying - they surely they aren’t self-evident? I suppose what i’m getting at is what’s the difference between “self-evident” and “From what I see, it’s so”?

I don’t believe there are human (or otherwise) rights that exist beyond the law.

15

From Henry Sumner Maine on Ancient Law, Chapter IV: History of Law of Nature: International Law, (1864):

“Looking back, however, to the period at which the theory of the state of nature acquired the maximum of political importance, there are few who will deny that it helped most powerfully to bring about the grosser disappointments of which the first French revolution was fertile. It gave birth, or intense stimulus, to the vices of mental habit all but universal at the time, distain of positive law, impatience of experience, and the preference of a priori to all other reasoning. In proportion too as this philosophy fixes its grasp on minds which have thought less than others and fortified themselves with smaller observation, its tendency is to become distinctly anarchical. It is surprising to note how many of the *Sophismes Anarchiques * which Dumont published for Bentham, and which embody Bentham’s exposure of errors distinctively French, are derived from the Roman hypothesis in its French transformation, and are unintelligible unless referred to it. On this point too it is a curious exercise to consult the Moniteur during the principal eras of the Revolution. The appeals to the Law and State of Nature become thicker as the times grow darker.”

“There is a single example which very strikingly illustrates the effects of the theory of natural law on modern society, and indicates how very far are those effects from being exhausted. There cannont, I conceive, be any question that to the assumption of the Law Natural we owe the doctrine of the fundamental equality of human beings. That “all men are equal” is one of a large number of legal provisions which, in progress of time, have become political. The Roman jurisconsults of the Antonine era lay down that “omnes hominess natura aequales sunt,” but in their eyes this is a strictly juridical axiom. . . . . Where the Roman jurisconsult had written “aequales sunt,” meaning exactly what he said, the modern civilian wrote “all men are equal” in the sense of “all men ought to be equal.””

16

[QUOTE=Revenant Threshold]
Surely “self-evident” means precisely that, that they are evident to one’s self. If you accept that some people deny their existence - and assuming they aren’t lying - they surely they aren’t self-evident? I suppose what i’m getting at is what’s the difference between “self-evident” and “From what I see, it’s so”?
[/QUOTE]
I think they generally ARE lying, at least to themselves. Or being hypocritical. Not many people think that oppression or abuse is just when they are the abused and tyrannized, instead of the other way around.

Perhaps a better way to refer to such “rights” is that they are “self evident”, or at least pretty obvious if you don’t get to be in a position of privilege; which means that they are ( or should ) be obviously desirable to most of the population. In my opinion, a lot of the ethical progress we’ve made in the last few centuries is due to people collectively figuring out that they aren’t always going to personally be in the position of advantage.

17

[QUOTE=Der Trihs]
I think they generally ARE lying, at least to themselves. Or being hypocritical. Not many people think that oppression or abuse is just when they are the abused and tyrannized, instead of the other way around.
[/quote]
Well, i’m one of those who doesn’t see any self-evident rights. Am I lying to myself?

I don’t deny that many such rights are obviously desirable. But I think there’s a pretty significant difference between “they exist” and “it would be nice if they existed, so let’s act as though they do”. Having a right to medical care, for instance, is certainly something I would like. But I don’t think that, simply because i’m a human, I am therefore entitled to it.

18

[QUOTE=Revenant Threshold]
Surely “self-evident” means precisely that, that they are evident to one’s self. If you accept that some people deny their existence - and assuming they aren’t lying - they surely they aren’t self-evident?
[/QUOTE]

Absolutely not.

Raping babies is self-evidently wrong. So was the Nazi Holocaust. Some people may deny these statements, but that does not make their truth any less self-evident. It merely means that these people are either dishonest, self-deluded, psychologically twisted, or simply not thinking straight.

To use a more mundane example, it’s pretty obvious that the statement “There are no truths” is self-refuting… yet a great many people would support such a claim. It could be that these folks are genuinely twisted. More probably though, they simply haven’t sat down to ponder the matter.

I daresay that there is no truth so obvious that you will never find someone who’ll deny it. That doesn’t make the truth itself any less obvious. It does, however, speak volumes about the denier.

19

[QUOTE=Revenant Threshold]
I don’t deny that many such rights are obviously desirable. But I think there’s a pretty significant difference between “they exist” and “it would be nice if they existed, so let’s act as though they do”. Having a right to medical care, for instance, is certainly something I would like. But I don’t think that, simply because i’m a human, I am therefore entitled to it.
[/QUOTE]
Well, I regard “obviously desirable” as “should be a right”. A right, after all, isn’t something you automatically get implemented like gravity; it’s something that has to be codified and enforced and achievable.

20

[QUOTE=Revenant Threshold]
I don’t believe there are human (or otherwise) rights that exist beyond the law.
[/QUOTE]
I see. So I take it that you don’t favor gay marriage, then? After all, the law in 48 states currently says that gays have no right to marriage.

And what about slavery? Were the abolitionists wrong to insist that blacks had intrinsic human rights? Or were the slaveowners the truly just parties in that conflict? Remember, the law was on their side at the time.