Liberty, equality and rights
169
collectively asserted, but also translated into legal institutions: rights, of which a core
set is regarded as pertaining to all human beings. When acknowledged in the Con-
stitution and implemented in ordinary law, we speak of fundamental rather than
human rights. The
latter are good for theory, mobilisation and rhetoric, while the
former are the politically significant format of rights, the cornerstone of the pol-
ity. We are now going to briefly see the history, the conceptual structure and the
function of
fundamental rights; in the next section their origin and validity will be
questioned, their enumeration discussed, then closing with the question of a right
to survival for humankind.
Their rise in the eighteenth century was a Copernican revolution in European
and American
politics, as the view on politics
ex parte principis/from the side of the
prince or ruler was reversed into a view
ex parte civium/from the side of the citizens.
The individual and her/his rights substituted the state and the duties it imposed
legitimately on the citizens. Modern liberty, as liberty of the individual, replaced
ancient liberty, as liberty and sovereignty of the polity, only acting as a member
of which the citizen can realise his liberty (women were not citizens).
9
Since the
American
Bill of Rights
10
and the French
Déclaration des droits de l’homme et du
citoyen/Declaration of the Rights of Man and of the Citizen, both issued in 1789,
similar normative texts stating the fundamental rights of the citizens have been
incorporated into the Constitutions of most states, including the People’s Republic
of China and the Democratic People’s Republic of Korea – cases in which one is
reminded that words are not always deeds. While the rights of the citizens remain
limited to each nation state’s members, with the exception of the European Charter
of Fundamental Rights, which is legally binding since 2009
for all EU member
states, the rights of man – or human rights, as they are now called in a wording
deemed to be less sexist – are only partially enshrined in international treaties and
conventions and remain otherwise heralded and supported, but not protected in a
legally binding way by the Universal Declaration of Human Rights (UDHR) of
1948 – though this protection was later anchored in the 1967 International Cov-
enant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights (1966).
Of the several distinctions made in the literature on rights, the
most important
seems to be the one regarding
claim rights and
liberty rights. Liberty rights give a per-
son permission to do something: to speak in full freedom, to buy or sell property, to
travel wherever s/he likes to. Claim rights allow a person to enjoin another person
or body not to do something that can limit her/his/its liberty. In an ideal liberal
world, liberty rights (also called privileges) are limited only by the obligation not
to infringe upon other people’s liberties. These concepts are a better analytical tool
than the usual pair negative vs. positive rights. It must be also noted that in Latin,
Romance
languages and German, which do not have two different words for right
and law, and the collective singular
ius/le droit/il diritto/el derecho/das Recht also
indicates the totality of norms (the law), both liberty and claim rights are regarded
as ‘subjective’ rights, which only in its modern evolution does the legal system
acknowledge as belonging to the individual as such.
170 Ethics and politics
This last feature is important in order to deny the legitimacy of group rights: the
group counts only as a gathering of individuals who share certain characteristics, for
example being an ethnic minority and making use of the right of such minorities
to be taught also in their native tongue. Granting rights to the group as such would
mean depriving members of their autonomy and making them dependent on the
will and the whims of the group leaders.
11
What is the
function of rights? The so-called will theorists intend that they
affirm the citizen’s sovereignty over her/his course of action and –
in case of claim
rights – the duties another citizen or an institution has against her/him (s/he can
request them to be implemented or waive them). The background idea is that in
exercising one’s own rights, one sees her/his own human dignity, a Kantian con-
cept, respected and realised. In a consequentialist key, interest theorists believe that
rights are good for furthering a person’s interest in wellbeing. The two schools of
thought differ in their moral philosophy, deontological and utilitarian. In both cases
rights are, in legal or political arguments, ‘trump cards’, as Ronald Dworkin (1977)
dubbed them, which can overwhelm any other consideration
because of their pre-
scriptive strength.
We have now seen that a discourse on rights implies contaminations between
moral, legal and political theory; by no means, however, a transportation belt on
which rights, dictated by morals, are first found and then go on to shape the law
and eventually their execution by political means. The relationships between the
single branches of practical philosophy is a little more complex. Rights remain a
primarily
legal and political concept; and the very notion of
moral rights is question-
able and should be used with caution or left in the drawer – even if this remark
does not imply sharing the outright opposition to the notion of rights found in
utilitarianism. For things we as moral agents believe to have ground to claim, this
word ‘claim’ seems more appropriate than ‘right’. What normative morality focuses
upon are otherwise obligations.
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