What are rights, in the context of jurisprudence? Although civil and human rights are the foundations of modern nation states, they seem to differ from regular laws in an almost ghostly fashion. What are rights? Where do they come from? Are rights universal across borders, or do they stem from a country's laws? The answers to these questions can have profound implications on a country's legal system - and this essay is my attempt at creating my own theory regarding the nature of rights.
Since we are exploring a topic that we do not understand, let us define "rights" in vague, and flexible terms at first. We can update our definition as we move along. The minimum viable definition for "rights" is that they are certain ideas regarding entitlement - something that you should be able to do. I think this is the broadest definition I can think of, one that we narrow down as we refine our theory.
The first position that one may take is a cynical one, which states that rights do not exist at all. "Rights are mere social conventions, that exist only due to enforcement", says the Cynic. "In places where there is no rule of law, or an unwillingness to enforce these rights, even the most important of these human rights are violated. Hence, it shows that rights do not exist at all, but are a social construct". At first glance, this seems like an compelling argument. After all, it is easy to list places where these so-called universal rights are routinely violated, either through malice (North Korea) or through neglect (Somaliland). Furthermore, there is widespread disagreement for what constitutes as an right. For some people & nations, all human beings have an irrevokable right to end their own life, while in other countries, no such right exists. Even these so-called universal rights such as the UN's Universal Declaration of Human Rights are intepreted differently in different countries and cultures - a fact that did not escape criticism.
But for me, this argument is inadequate - because it's core premise is that rights are meaingless without enforcement. That is patently not true. There are countless places around the world, where rights are not enforced or recognized - and yet, people still fight for them. From the Civil Rights Movement in the United States, to protests in Tiananmen Square - real, visceral blood, has been spilt for these "nonexistent" rights. Surely, if rights depend on enforcement, - they would not hold such sway over people, nor lead countless martyars to their doom.
On the other side of the argument, is the claim that rights are universal, and divinely ordained. "All humans have fundemental rights, that are granted to us by God- if not by our shared humanity" proclaims the Idealist. "These rights transcend law itself, for they are universal beyond borders. Nations may violate these rights, but the fact that these rights exist cannot be ignored". This is the sentiment expressed by the U.S. Constitution itself, and it matters not whether these rights stem from divine authority, or through human nature - but the most important characteristic is that they are considered universal. At first glance, this argument is intuitively more appealing. For there's always been something ghostly about rights - in a way that sets them apart from mere, mortal laws. Even the most oppressive totalitarian regimes pay lip service to rights, even to the point where they'll proclaim that they are the strongholds of human rights - when everyone else knows that it's not true. To argue that rights are special, that they answer to some higher authority - is a comfortable explanation of these facts.
But likewise, this argument in itself is not entirely without flaw. For one, the fact that it relies on an external authority makes it suspect. If these rights are bestowed upon us from God, then which God do these rights come from? Surely in that case, other religions would have different notions of these so-called universal rights - hence, contradicting the claim. To argue that they stem from 'human nature' would be even worse - for that is a topic of even greater disagreement (re: Thomas Hobbes v.s. John Locke). Furthermore, it does not address the social nature of a right.
Is it meaningful to have "rights" in a community of one person? If there is only one person on the planet, would the idea of rights matter at all? I don't believe so. And this negation gives us a meaningful piece of evidence - for it shows that rights cannot exist without a community. This takes us a step closer to the first argument - that rights are social conventions. But yet, the Cynical definition of rights do not allow us to explain why rights are often enshrined as something that is beyond the law. How can we reconcile these factors?
This leads me to my own theory regarding the nature of rights, that I believe holds the most explanatory power for the nature of jurisprudence in our world. "Rights", declares the Formalist "Are the foundational axioms of a nation's laws. All laws stem from rights, and it is as a result that rights are above the law. For when a law contradicts a right, it exposes an contradiction in the legal system".
This is a compelling theory for me, because it combines the best out of the Cynic's and the Idealist's theories. For one, as rights are axioms, different nations and peoples can rightfully have different rights. Although all countries are signatories of the United Nation's Universal Declaration - individual countries may intepret "the right to have a family" in different ways. Whatever their intepretation, it will serve as the foundation of their legal system - leading to the diversity of rights in the world today.This theory explains why dictatorships pay lip service to rights, even when they don't follow them - for otherwise, one's legal system will be exposed as contradictory and inconsistent. It also comfortably explains why rights have this ghostly, holier-than-law nature - for laws are dependent on them.