Download Implied rights

Civil rights are the protections and privileges of personal power given to all citizens by
law. Civil rights are distinguished from "human rights" or "natural rights". Civil rights
are rights that are bestowed by nations on those within their territorial boundaries, while
natural or human rights are rights that many scholars claim that individuals have by
nature of being born. For example, the philosopher John Locke (1632–1704) argued that
the natural rights of life, liberty and property should be converted into civil rights and
protected by the sovereign state as an aspect of the social contract. Others have argued
that people acquire rights as an inalienable gift from a deity (such as God) or at a time
of nature before governments were formed.
Laws guaranteeing civil rights may be written down, derived from custom or implied. In
the United States and most continental European countries, civil rights laws are most
often written. Examples of civil rights and liberties include the right to get redress if
injured by another, the right to privacy, the right of peaceful protest, the right to a fair
investigation and trial if suspected of a crime, and more generally-based constitutional
rights such as the right to vote, the right to personal freedom, the right to freedom of
movement and the right of equal protection. As civilizations emerged and formalized
through written constitutions, some of the more important civil rights were granted to
citizens. When those grants were later found inadequate, civil rights movements
emerged as the vehicle for claiming more equal protection for all citizens and
advocating new laws to restrict the effect of current discriminations.
There are two major schools of thought:
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Hohfeld proposed a structured system of interrelated concepts
Nozick and Rawls approached the concept of rights from the perspectives of
libertarian and political belief.
Hohfeld's concept of right
Hohfeld distinguished right from liberty, and power from immunity—concepts that are
often used interchangeably in non-technical discourse, but are philosophically different.
By examining the relationships between these concepts, he hoped to explain the legal
interests that have evolved in the real world of civil society and to answer the question
whether citizens of a state have any right to access any of the possible forms of social
security. ~ Right and duty are correlative concepts, i.e. one must always be matched by
the other. If A claims a right against B, this is meaningless unless B has a duty to honor
A's right. If B has no duty, that means that B has liberty, i.e. B can do whatever he or
she pleases because B has no duty to refrain from doing it, and A has no right to
prohibit B from doing so. An individual would be considered to have perfect liberty if
no one has a right to prevent the given act. ~ Power means the capacity to create legal
relationships and to create rights and liabilities. The correlative of power is liability. If
A has power over B, B must have liability towards A. For example, properly constituted
courts have the power to pass judgments that impose liabilities but, if the defendants are
outside the courts' jurisdiction, the judgments are unenforceable. Similarly, a legislature
has power to make laws, but those laws that attempt to restrict a fundamental right may
be unconstitutional. If the laws are valid, they create a disability; the legal opposite of
disability is power. So, children or people suffering from a mental disability should be
protected from liability and their power to make a binding contract is removed. A
person loses the right to sue another to recover a debt if the period of limitation has
expired. ~ The legal opposite of liability is immunity. In some countries, government
departments exercising sovereign powers cannot be sued in tort and the President or the
Prime Minister cannot be personally liable in respect of any contract made or assurance
given for the purposes of the state. These are examples of immunities.
Although the word right is often used to describe liberty, power, or immunity, Hohfeld
clearly distinguished them. Indeed, Hohfeld described liberty as an a priori condition of
the rule of law, coming into existence long before any Bill of Rights and offering an
individual power to the extent that it is not restricted by any law. Essentially, Hohfeld
believed that anyone who tries to encroach on the liberty of a citizen must be required to
demonstrate their clear right to do so. After more than eighty years of consideration,
some doubt whether this set of conceptual relationships is philosophically sustainable.
But, the core juxtaposition of right, duty and liberty remains a seductive argument.
Political theories of a just state: Rawls and Nozick
Just society
John Rawls (1921–2002) developed a model of a different form of just society which
relied on:
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The "liberty principle" which holds that citizens require minimal civil and legal
rights to protect themselves
The "difference principle" which states that every citizen would want to live in a
society where improving the condition of the poorest becomes the first priority.
For Rawls, a right is an "entitlement or justified claim on others" which comprises both
negative and positive obligations, i.e. both that others must not harm anyone (negative
obligation), and surrender a proportion of their earnings through taxation for the benefit
of low-income earners (positive). This blurs the relationship between rights and duties
as proposed by Hohfeld. For example if a citizen had the right to free medical care, then
others (through the agency of the government) would be obligated to provide that
service.
Critics of Rawls' approach doubt whether the difference principle is congruous with a
state consistently applying the capitalist model. Rawls' ideas however have influenced
the implementation of social market economies within a capitalist system in European
countries like Germany.
Minimal state
Robert Nozick (1938–2002) offered a model of a minimal state, described as
libertarianism. Nozick argued that no state is ever justified in offering anything more
than the most minimal of state functions, and further, that whatever might exist by way
of rights exists only in the negative sense of those actions not yet prohibited. He denied
the possibility that any citizen can have rights that require others to offer him or her
services at the state's expense, and tested whether exchanges between individuals were
legitimate by an entitlement theory:
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The "acquisition principle" states that people are entitled to retain all holdings
acquired in a just way
The "rectification principle" requires that any violation of the first two principles
be repaired by returning holdings to their rightful owners as a "one time"
redistribution (a reference to the Rawlsian Difference Principle).
Nozick, therefore, believed that there are no positive civil rights, only rights to property
and the right of autonomy. For him, a just society does as much as possible to protect
everyone's independence and freedom to take any action for the benefit of one's self.
This is an important teleological protection: the Jeffersonian political philosophy right
to the pursuit of happiness is the freedom to engage in any actions so long as they do not
infringe upon that same right exercised by others.
Critics of the minimal state-model argue that a state which provides no services to
citizens is inadequate.
The difference between Rawls and Nozick is that Rawls thought that a state should
always provide the basic fundamentals of physical existence, whereas Nozick gave no
guarantee save that an individual always had the freedom to pursue happiness.
Implied rights
"Implied" rights are rights that a court may find to exist even though not expressly
guaranteed by written law or custom, on the theory that a written or customary right
must necessarily include the implied right. One famous (and controversial) example of a
right implied from the U.S. Constitution is the "right to privacy", which the U.S.
Supreme Court found to exist in the 1965 case of Griswold v. Connecticut. In the 1973
case of Roe v. Wade, the court found that state legislation prohibiting or limiting
abortion violated this right to privacy. As a rule, state governments can expand civil
rights beyond the U.S. Constitution, but they cannot diminish Constitutional rights.
By region
United States
The United States Constitution recognizes different civil rights than do most other
national constitutions. Two examples of civil rights found in the US but rarely (if ever)
elsewhere are the right to bear arms (Second Amendment to the United States
Constitution) and the right to a jury trial (Sixth Amendment to the United States
Constitution). Few nations, not even including the United Nations, have recognized
either of these civil rights. Many nations recognize an individual's civil right to not be
executed for crimes, a civil right not recognized within the US.