8.3.2 |
POLITICAL AND CIVIL RIGHTS |
A number of rights recognized in traditional doctrines
may be classified as
extrinsic general rights, or either as
extrinsic or intrinsic, general rights dependent on the
interpretation. One such right, and by far the most important one, is
the discretionary right to life. Another one is the right to
liberty, if liberty is understood in the nonactivating
(or so-called 'negative') sense of the absence of constraints. Both
rights may be found under various names, such as the right of
bodily safety and freedom, the right to security of person,
to liberties (as personal values or interests) or the right
not to be killed, not to be tortured, not to be a slave. From
these rights more specific rights may be derived, such as the right
'to the pursuit of happiness' (or any other commodity), 'to
freedom of thought and conscience', 'to freedom of opinion and
expression' ( including the 'freedom to hold opinions without
interference and to seek, receive and impart information and
ideas thru any media' ), 'to freedom of peaceful assembly and
association', or 'to freedom of movement and residence'. All
these rights may be interpreted as general, discretionary rights
which do not depend on the principles of any particular
morality, religion, political ideology or other normative system.
So long as they are analyzed as active (negative) rights
and do not require a ('positive') performance by another party,
they are extrinsic to any such particular normative system.
Extrinsic rights (and active rights in general) may be made
more specific by more narrowly defining the kind of act the
right-holder is free to perform or to refrain from, or the kind
of situation
'e is permitted to live in; they may also
be made more specific by more narrowly defining the class to which the
right-holder belongs, or is permitted to belong. This is what
generates the category of civil or political rights, when the
bearer is looked upon as a citizen or a resident of
a state. (It remains a proper subclass of the class of extrinsic
rights nevertheless.) Examples of such civil rights are the right
'to participate in political activities', 'to freedom to seek,
receive and impart information regardless of frontiers' and 'to
freedom of movement and residence within the border of each state'.
Civil or political rights which require an action by the or a
government, or by other people, do not belong to the class of
extrinsic, general rights as they are never passive. In general
one would say that rights such as the right 'to a nationality
and to choose one's nationality', 'to recognition as a person
before the law', 'to equal protection of the law', 'to a fair
trial', 'to vote', 'to take part in the government of one's
country' or 'to a share in political power' are rights correlating
with an activating duty required or presupposed. On another
view, however, such rights may be looked upon as rights to
freedom from discrimination, and on this interpretation the
correlative duty is the duty not to make an irrelevant distinction
between citizens or residents. As discrimination would
require activation (a 'positive act') in these cases, namely the
drawing of a distinction on the basis of some irrelevant factor,
the right to freedom from discrimination is an active, general
right which deserves to be called "extrinsic". This facet of
nondiscrimination is found again in the use of terms such as
equal and fair in the formulation of the rights. The
argument is only valid, however, so long as equality or fairness
does not require the government or other citizens to draw
relevant distinctions. Firstly, this demands someone else's
activation; and secondly, it inevitably introduces a focus of
relevancy with a (first-order or
non-metadoctrinal) doctrinal principle
establishing its content.
If the right to a nationality exists, and if it is an
extrinsic general right, then it means that everyone may take on
a nationality, and that no irrelevant distinction ought to be
made between people in this respect. As an extrinsic right, it
also means that one does not have to assume a nationality. If
having a nationality, or a particular nationality, is mandatory,
then the 'right' to such a nationality is an intrinsic half-right.
Recognition before the law sounds like an expression
referring to an activation, namely the recognition, but when it
means that within the category of persons no distinction shall
be drawn, the right to such a recognition correlates with a
nonactivating duty. But, of course, a personal being living in a
stateless environment could not on the basis of this right claim
to be recognized before a law. The existence of a state
and a law have already been presupposed in the formulation of
such a general right.
The right to freedom from discrimination per se, whether
extrinsic or intrinsic, is a right which is never, or seldom,
mentioned in traditional declarations and theories on rights. If
discrimination is mentioned at all, the alleged 'basic' right is
usually confined to a freedom from racial discrimination, even
when this is not explicitly mentioned. Thus, the traditional
theorist may speak of a right 'to open housing', that is, to
rent, lease or buy homes without discrimination, but exclusively
refer to, and think of, a distinction on the basis of race or
skin color. Rights which are formulated without using the term
discrimination, but which guarantee a kind of freedom from
discrimination nonetheless, are usually a little bit less
restrictive. They may also mention 'the freedom of religion' but
not adherence or nonadherence to a denominational doctrine in
general, and not from religion. Or, they may mention 'the
freedom to change one's religion or belief' and not just one's
belief, whether religious or not. (A traditional declaration of
human rights has it that education should promote tolerance and
friendship between religious groups only, not between groups of
different ideological persuasions, denominational or not, political
or not.) Such selective alleged rights suffer from
religionism and
interfactorial exclusivism,
phenomena to receive special attention in the opening chapters of
the Book of Fundamentals.
Not only can they not be extrinsic, they are expressive of the
wrong morality and the wrong ideology.
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