Genuine question because I never understand what people mean when they use that phrase: how is a right fundamental? Does the cold universe assign them to us or do a set of people agree such-and-such are fundamental. If the latter, were the same rights fundamental 20,000 years ago? (Because if they are fundamental, they should stretch back to early man… earlier than even 20,000 years ago)
I think that "fundamental" doesn't mean "naturally occurring" or "universal", but rather "foundational", in the sense that more nuanced rights are based upon their basic principles.
So for example we have the principle of "freedom of speech", which might be accepted by courts and society as including a right to publish literary works that some deem offensive, but that could be considered a subsidiary or supplementary right which doesn't have the same level of protection.
More relevantly, a society might accept the principle of a "right to privacy", but might not think that grants a "right to privacy from warranted surveillance" or from "warrant-less automated mass surveillance".
Of course there will always be a tension, as rights activists will instinctively claim that denying some specific right is undermining a fundamental right, since they are sure that everyone agrees that the new right is an inherent consequence of that fundamental right, but the government will always claim that its policy doesn't impinge upon any fundamental right and that the specific new right that the activists believe in doesn't need to exist at all.
The Canadian Charter of Rights and Freedoms actually enumerates the "fundamental" freedoms separately: freedom of expression, freedom of religion, freedom of thought, freedom of belief, freedom of peaceful assembly and freedom of association.
Contrast these with the rights enumerated e.g., democratic rights (the right to vote), legal rights (freedom from unreasonable search and seizure, right to counsel), mobility rights (right to live in any province and enter and leave Canada).
The rights granted are those that build _a_ society that supports those fundamental freedoms. The fundamental freedoms themselves are not something that exist in support of anything, but are simply accepted as something that stand alone as something we demand of our government.
Do you mean that fundamental rights are anything we want them to be ? So if we want, we could decide that the right to be free of criminal activity (particularly ones that encourage or lead to degradation, depression, death, etc. of children) is more fundamental than the right of privacy ? I think there's something more to being fundamental. Otherwise it seems all very arbitrary. Calling something fundamental could change at the whim of the majority.
For example, the Universal Declaration of Human Rights, but other countries might have determined their own (additional) set.
I would assume the name "fundamental" was chosen because all other rights derive from them, i.e. if they're taken away from you, you won't be able to preserve the non-fundamental rights.
> the Universal Declaration of Human Rights, but other countries might have determined their own (additional) set
It works in opposite way. Universal Declaration universally declares nice stuff, but member countries are free to restrict and persecute the freedom of """hate speech""", the freedom of """extremist expression""" et cetera et cetera et cetera
UDoHR is just a words, intellectuals are seduced by words and dismiss the fact UDoHR doesn't works anywhere except (maybe) America
No rights are objectively fundamental. It's subjective. If people in power don't agree to act as though certain rights are fundamental, they cease to be enforced, even if lip service is paid.
Excellent point. So I’ll ignore “fundamental right” next time I read it.
I note that the United States uses “inalienable rights”, meaning ones which can’t be given or taken away.
The only things that can’t be given or taken from me without a lobotomy are my education and internal thoughts and beliefs (that includes things like self-worth and dignity).
Inalienable is just as worthless a fundamental. Obviously the US govt takes away its citizens' rights to life, liberty and pursuit of happiness through actions such as death penalty, imprisonment, compulsory military draft, and all kinds of less severe restrictions for criminals and suspects.
That's a misunderstanding of "inalienable" or "unalienable".
An alienable right is one which can be assigned to another.
Your physical, real (land), and usefruct rights (as with intellectual property rights) can be alienated in the sense that you can be deprived of them and then they can be assigned to another entity.
Inalienable rights can be denied to you, but cannot be made alien in the sense that another receives their benefits. Your own life, your own happiness, your own liberty, among other privileges you may enjoy, can be deprived of you. But nobody else can receive their benefits.
The notion of inalienable rights is not absolutely fixed. In 1800, you would have had an inalienable right to the function of your own heart, lungs, kidneys, liver, etc. With organ transplants, these are now alienable rights, as those organs (and others) can be removed and given to others, through advances in medical technology.
Note that your usefruct rights and your property rights can be alienated, but your right to property, as a separate concept, cannot.
That is, the benefits or possession of property can be transferred to another. The ability to benefit or possess cannot. Those last can be denied, and the objects of them transferred, but the right to enjoy, much as happiness or enjoyment itself, is inalienable.
A right by its name can be given or taken away. I feel the discussion about fundamental rights is moot as it always depends on the powers that be. In that sense I prefer dane-pgp's explanation of these being more foundational rights.
Your thoughts and beliefs and your actions are what you are and not a right.
If Hitler came to power, let's say in an election but it doesn't matter since the right to vote is also a privilege according to your view, and said "alright, henceforth, all blacks lose the privilege of living", would you find that irrefutable and in conformity with your own logic? If Jeffrey Epstein took power and said "children may now be raped at will", is that a matter of a privilege being cancelled? Does "might make right" however you define "might"?
Morally you and me might prefer a system where might does not make right and human rights are truly inalienable.
Practically, however, these rights are only inalienable as long as the powers-that-be (police, military, organs of the state) agree -- if hypothetical Emperor Epstein (or real-life President Ashraf Ghani) declares child rape to be legal, and police and courts obey him, then good luck going up against them...
You are mixing up two different definitions of "right". One is a legal term about what you are allowed to do or what can be done to you. That's what gp meant. And I agree that the only rights you have in that sense are ultimately those you are willing to fight and die for. If it can just be taken away it's not meaningfully fundamental, unalienable, or universal as a legal right.
The definition you used is about what's morally right and in that sense talking about fundamental rights that can't be taken away if you want to hold up some definition of human dignity makes sense, but even then it's subjective to some degree and depends on which school of thought you subscribe to.
Your example shows exactly this ditchomy. If freedom can be taken away and sexual consent ignored, those things can't be at fundamental or real as physical laws. But even so I have a hard time imagining most who see it this way would consider this as anything but reprehensible.
Can you explain to me the context in which an unenforceable right has meaning?
I think by any definition, a right without a remedy is meaningless. If you have a right to expression but the state taxes printing presses so excessively that only the rich can print, what good is that right?
If you have the right to an attorney but cannot afford one or the cops won't let that attorney talk to you, what good is that right? If you go to trual and they say, "it's fine, your attorney is here, representing you" and you've never seen that person before in your life, that's what we call a kangaroo court.
Many would agree that you have a right to rebel if someone tries to enslave you. How did that work out for Nat Turner? These rights matter in an idealistic way? Was that Nat Turner's goal? To get 21st century people really thinking? Or did he want a family he could keep with him, his own home, his own food?
We are used to telling ourselves over and over the stories of people who believed in their rights, fought and won them. We conspicuously ignore the stories of people who believed in their rights, fought and lost and then were not just denied their rights but made into villains.
And don't even get me started on Operation Paper Clip, U.S. intelligence supported Nazi rat lines and Nuremberg.
Perhaps if you believe there is some philosophical cosmic central plexus where your case will be adjudicated after death you can believe in capital R "Rights". I do not. And so in my opinion, all rights depend on the right to enforce them.
Again, there are numerous definitions of "right". Most usages in this thread seem to fall under the OED's 9th definition, of "a legal, equitable, or moral title or claim to the possession of property or authority, the enjoyment of privileges or immunities, etc."
Whist legal rights might have some enforcement mechanism, equitable or moral rights (divorced of legal aspects) typically would not. The right is recognised or might be asserted or defended, but by other-than-legal means.
Black's Law Dictionary gives a number of definitions, though as these are (largely) specifically in the context of law, their narrowness is somewhat expected. Fundamental right however has as its first definition "a right derived from natural or fundamental law", which might be construed as at least partially exceeding legal enforcement.
The whole notion of rights can become complicated, and whilst I often agree with the sentiments or goals of those advocating for certain rights, I find the specific rationale, logic, and/or empirical grounds often weak, leaning far more on rhetoric than some basis in reality. At the extreme, for any given right, based on "natural" or "fundamental" law, it's virtually always possible to construct a competing right which negates or countermands that.
The rights of speech vs. privacy, of bearing arms vs. freedom from coercion or fear, of access to healthcare vs. freedom from supporting another, of the national right to defence vs. the right to refrain from violence (including supporting it monetarily through taxes), etc.
There's a school of thought which dismisses the notion of rights, probably most famously Jeremy Bentham. I'm not sure I fully subscribe to his views (I've only read brief summaries, and don't substantially know them), though I'm inclined that way myself.
What I see are competing sets of freedoms, privileges, responsibilities, and obligations, most of which exist, as you suggest, based on the ability to assert or defend them as a practical matter, and to that degree I think we are in some agreement. I'd be more willing generally to suggests rights in a moral sense that should be aspired to. These might be your unenforceable, but not meaningless, rights.
There's a tremendous amount of historical reletivism and present-bias in discussion of rights. There've been incredibly durable and arguably thriving societies whose rights and values systems differ sharply with those of most present-day countries. There's been a considerable movement in questions of ethics, morality, and rights within my own lifetime, within my own homeland, and those developments are far less than those experienced elsewhere over the same period.
Absolutist declarations of rights tend to end poorly.
Governments bestow, enforce, and adjudicate legal rights.
There may well be other types of rights that are being discussed here, and much of the confusion in discussions of rights seems to revolve around disagreement on those definitions. It becomes something of a mott-and-bailey tactic, or one of terms expressed and understood quite differently by participants.
"Bestowed by their Creator" starts leaning very heavily on a specific religion's doctrines, and given that there is no religion which is universally adhered to by all persons, dominant in all nations, or indeed acknowleging that "no religion" is the belief of a substantial portion of the population, then regardless of the legacy of the phrase, it's not especially useful in discussion and to me seems to obscure more than it reveals.
How do we know what those fundamental rights are? By observing what happens to societies that have various formulations of rights. The societies that thrive are closer to the mark than societies that are mired in misery, despair, and death.
There are at least 8 ways to divide up the “ten commandments” passages in Exodus and Deuteronomy into a total of 14 commandments, the Quran has a different set (not being a religious scholar I can’t meaningfully assert how different, given linguistic drift and translation challenges).
Bushido (or the form of it on Wikipedia) has a fairly different and also interesting set.
Anton LaVey (Church of Satan) has an interesting, albeit stereotypically American, eleven.
The majority of the commandments are not rights but restrictions, the "thou shall not"s. Even the positively-phrased commandments are obligations ("honour thy father and mother...").
I have no rights unless others recognize and at least tacitly agree that they have obligations with respect to those rights.
As the only person left in the universe (after some cataclysm), you'd be left with obligations but no rights. The obligations would include those that arise from within yourself to prevail and try to survive as best you can. Rights? Well, who would be granting those? The innate bit refers to obligations but not rights.
Natural rights exist even when denied and infringed. Perhaps they are discovered as a consequence of human behavior, rather than molded by a grantor in acts of beneficence or compromise.
We assign those rights as a society and, more relevantly here, as a political system. The people who draft our constitutions and (like for all political norms) those who create our political discourse have more influence in defining them than the general population, but these norms have to be agreed to by a fairly large swathe of society to be effective.
b) Elites exert control by persuasion; they control the discourse, they organize larger movements, &c. There are still limits to what popular opinion will go along with.
c) Intelligence agencies are, in most rich democratic countries, not a major lever of political power. Government economic institutions, police, courts, and the like are much more influential in both day-to-day lives and in shaping popular conceptions of the "rules of the game".
The right to life (in a negative, the government-shouldn't-take-it-away) is quite universally recognized - in cases where it's violated, defenders of that violation work very hard to craft a strong justification.
The right to free speech (again, in a negative the-government-shouldn't-take-it-away) sense is also a fundamental part of political discourse.
The right to private religious practice is broadly fundamental, though the right to religious practice of various sorts in the public domain (as well as the definition of that public domain) is hotly disputed.
Notably, the right to certain social goods are "fundamental" in parts of Western Europe (e.g. healthcare in the UK), but very much are not in the US. My general impression is that positive (the-government-should-provide-it) rights are much more rarely "fundamental" in the sense of being deep in a polity's consensus.
Thanks for asking this. I’ve wondered the same things. The answers so far don’t seem to really answer the question well, which makes me wonder if this is just one of those phrases that people banter about without considering if it actually means anything.
Yeah, I can’t for the life of me think of any right that is fundamental when you consider the whole of human history and societies that have existed.
Even breathing — the most basic need — can be argued as not a right but something that the universe requires as a need to live. If breathing and life were “fundamental rights”, then there would be a provision in the laws of nature for them.
Rights presuppose justice. When I say that I have a right to something, it means that something is owed or due to me from others for some reason. Justice, like all of morality (see "natural law theory"), presupposes human nature. Human beings are rational animals with the freedom to choose according to (or against) what is rational. If we lacked, by nature, either rationality or free choice, it would not make any sense to speak of the exercise of justice and therefore of rights because if I can't understand, then I cannot be expected to choose according to the objectively good, and if I cannot choose freely then I cannot opt for the good.
What is good for human beings is objectively true as determined by human nature. It is objectively harmful, for example, to starve. It is objectively harmful to cut off one's right arm. It is also objectively harmful to take drugs that frustrate the exercise of reason because this is opposed to being the kind of thing you are, a human being. The same can be said for the misuse of the body and its faculties in various ways. They work against their healthy function and your well-being.
Now, by nature, as I already said, human beings are rational animals, that is, it is our nature to be rational. We are also social animals. Thus, our own flourishing as individual human beings is also social. A society in which justice isn't practiced is no good for the human beings that are a part of it. Justice means that we can make claims, at least under certain conditions. It is of course unjust to make claims upon others that are not warranted, so we must determine what exactly constitutes a just and legitimate claim. This presupposes rationality (you cannot have a claim to what is absurd or evil) and relational (some relations are voluntary, others are not, but the nature of the relationship will inform us of our obligations and claims) and conditioned by other factors (a criminal forfeits certain rights by virtue of having committed an injustice).
I will agree with you, though, that "fundamental rights" is unclear. If they mean something like what I've described, as something that is determined by human nature, then sure, they're fundamental in the sense that they have an objective ground in human nature. But if they are understood as somehow absolute in the sense that a criminal could go around murdering people and still maintain a claim to his own life, then no.
Fundamental is whatever the politicians and the rich decide it's fundamental. For example the right to live is fundamental except if you live in a conflict zone (US with its shootings included).
Genuine question because I never understand what people mean when they use that phrase: how is a right fundamental? Does the cold universe assign them to us or do a set of people agree such-and-such are fundamental. If the latter, were the same rights fundamental 20,000 years ago? (Because if they are fundamental, they should stretch back to early man… earlier than even 20,000 years ago)