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Some philosophers distinguish two types of rights, natural rights and legal rights.[1]
- Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal, fundamental and inalienable (they cannot be repealed by human laws, though one can forfeit their enjoyment through one's actions, such as by violating someone else's rights). Natural law is the law of natural rights.
- Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws). The concept of positive law is related to the concept of legal rights.
Natural law first appeared in ancient Greek philosophy,[2] and was referred to by Roman philosopher Cicero. It was subsequently alluded to in the Bible,[3] and then developed in the Middle Ages by Catholic philosophers such as Albert the Great, his pupil Thomas Aquinas, and Jean Gerson in his 1402 work "De Vita Spirituali Animae."[4] During the Age of Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.
The idea of human rights derives from theories of natural rights.[5] Those rejecting a distinction between human rights and natural rights view human rights as the successor that is not dependent on natural law, natural theology, or Christian theological doctrine.[5] Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is an important legal instrument enshrining one conception of natural rights into international soft law. Natural rights were traditionally viewed as exclusively negative rights,[6] whereas human rights also comprise positive rights.[7] Even on a natural rights conception of human rights, the two terms may not be synonymous.
The concept of natural rights is not universally accepted, partly due to its religious associations and perceived incoherence. Some philosophers argue that natural rights do not exist and that legal rights are the only rights; for instance, Jeremy Bentham called natural rights "simple nonsense".[8] Iusnaturalism, particularly, holds that legal norms follow a human universal knowledge. Thus, it views enacted laws that contradict such universal knowledge as unjust and illegitimate, but some jusnaturalists might attribute the source of natural law to a natural order instead of a divine mandate.[9][10]
- ^ "Natural Rights | History of Western Civilization II". courses.lumenlearning.com. Archived from the original on 17 October 2020. Retrieved 14 October 2020.
- ^ Rommen, Heinrich A.; Hanley, Thomas R. (1998). The Natural Law: A Study in Legal and Social Philosophy. Liberty Publishing. ISBN 978-0865971615. OCLC 1004487064. Archived from the original on 7 March 2022. Retrieved 7 March 2022.Natural rights and legal rights at Google Books
- ^ Romans 2:14–15
- ^ Grellard, Christophe (31 May 2022). "Systèmes de pensées et de croyances médiévaux". Annuaire de l'École pratique des hautes études (EPHE), Section des sciences religieuses. Résumé des conférences et travaux (in French). 129 (129): 383–400. doi:10.4000/asr.4158. ISSN 0183-7478.
- ^ a b Jones, Peter. Rights. Palgrave Macmillan, 1994, pp. 72, 74.[ISBN missing]
- ^ For example, the imperative "not to harm others" is said to be justified by natural law, but the same is not true when it comes to providing protection against harm
- ^ See James Nickel, Human Rights Archived 5 August 2019 at the Wayback Machine, 2010. The claim that "..all human rights are negative rights.." is rejected, therefore human rights also comprise positive rights.
- ^ "human rights – Natural law transformed into natural rights". Britannica. Archived from the original on 3 August 2022. Retrieved 3 August 2022.
- ^ Vallejo, Catalina (2012). Plurality of Peaces in Legal Action: Analyzing Constitutional Objections to Military Services in Colombia. Berlin: LIT Verlag. p. 62. ISBN 9783643902825.
- ^ Tella, María José Falcon y (2010). A Three-Dimensional Theory of Law. Leiden: Martinus Nijhoff Publishers. pp. 204, 326. ISBN 9789004179325.