Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory.
It is so easy to claim “rights” outside those allowed by law because social conventions and ethical theory are far from universally accepted and who wants to be guilty of denying someone their rights? Claiming rights is a very useful tool for manipulators.
So what legal system, social convention, or ethical theory is in place in Australia which set the rules about what is allowed of people or owed people?
Some countries have a “bill of rights” which is intended to spell out the rights of its citizens but Australia has avoided setting up such a bill and, instead, the rights of Australians as determined by our legal system are those specified in various pieces of legislation and the interpretation of these by courts of law.
Rights as granted by legal processes can have unintended consequences and legal challenges. When some people take advantage of rights enshrined in a law their actions may impinge on others who may believe they have a right not to be impacted in this way. Rights granted to some might be seen as removing the rights of someone else.
Granting rights is one thing; denying them is another. Many laws are made forbidding certain actions, sometimes by implication. The law states that we should drive on the left side of the road which means, by default, that we have no right to drive on the right.
It has been pointed out that when rights are established in law and it turns out the rights need amending that it is often difficult to change the law and thus redefine the rights. This problem is one argument given against having a Bill of Rights in Australia. It also shows that rights might not be absolute, permanent or universal: rights defined by law can be changed by changing the law.
Inalienable Rights are those which cannot be denied or transferred to another because, for example, they are prescribed by law or not allowed by law. Your right to vote cannot be denied you nor given to another; the ownership of the ocean cannot be assigned to you. Such rights are inalienable only for so long as the law does not change.
Do such rights extend to countries? Who owns the South China Sea? Or, at least the islands in it? There is disagreement between countries on such matters – and who is there to rule on them?
Rights which are assigned, or at least claimed, on ethical, social or other grounds are often contentious or unclear. The law gives no one the right to take your life but cannot give you a right to have one. There are different views as to when life begins and there follows disagreement as to when or whether a woman’s right to an abortion contravenes the right of her child to live. On ethical, moral or social grounds the claim follows that a woman has the right to determine what happens to her body and therefore may determine for herself whether to have an abortion. Then lawmakers interfere with this right, specifing conditions under which an abortion may be performed arguing the conflicting right of the unborn to its life.
Until recently law granted to a same-sex couple all the rights of a married couple except the right to describe themselves as married then the legal definition of marriage was changed to give same-sex couples the right to marry. Do people who hold to an ethical view that marriage can only be between a man and a woman have a right to that view? Can apparently conflicting rights coexist? Do legal rights rule out or simply take precedence over rights claimed for ethical reasons?
It seems some countries pass laws prescribing the rights of its citizens which appear to contravene their “human rights” – but that may be true for all countries.
Last Updated on October 11, 2018 by Ken Joyce