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Civil and political rights

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Rights
Theoretical distinctions
Human rights
Rights by beneficiary
Other groups of rights
Lyndon B. Johnson signs the U.S. Civil Rights Act of 1964.
Lyndon B. Johnson meets with civil rights leaders Martin Luther King, Jr., Whitney Young, James Farmer

Template:Discrimination2 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.

Theoretical background: The concept of right

Wesley Newcomb Hohfeld (1879–1918) maintained that analysis of legal issues is frequently muddled and inconsistent because the legal concepts are improperly understood. The first question, therefore, is to understand what the rights are in "civil rights". There are two major schools of thought:

  • 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:

  • 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:

  • 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

Civil rights can in one sense refer to the equal treatment of all citizens irrespective of race, sex, or other class, or it can refer to laws which invoke claims of positive liberty. An example of the former would be the decision in Brown v. Board of Education 347 U.S. 483 (1954) that was concerned with the constitutionality of laws which imposed segregation in the education systems of some U.S states. The U.S. Congress subsequently addressed the issue through the Civil Rights Act of 1964 Sec. 201. which states: (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. This legislation and the Americans with Disabilities Act of 1990 have constitutional stature as enumerations of civil rights guaranteed by the Fourteenth Amendment to the United States Constitution. Although the Fourteenth Amendment to the United States Constitution is often thought of as the civil rights amendment, all constitutional protections are considered within the US as civil rights. "Thomas Jefferson wrote "a free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate."[1]

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.

See also

Agencies

People

Politics

References

  1. ^ Thomas Jefferson: Rights of British America, 1774. ME 1:209, Papers 1:134 http://etext.virginia.edu/jefferson/quotations/jeff0100.htm
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