8.4.1 |
THE GENERAL NATURE OF FUNDAMENTAL 'LAWS'
AND RIGHTS |
One of the reasons for saying that someone has a right to
do something or to have something done, rather than saying that
'e should be able to do
something or that something should be done, is that the language of
rights is more emphatic. This is probably due not only to the intimate
relationship between the ethical language of rights and the
legal language of rights and the law, but also to the indirect
connection with the traditional physical language of 'laws'. The
association with legal laws and physical 'laws' is direct and
explicit in the notions of 'natural law' and 'natural rights'.
Yet, as has been pointed out, normative rights lose their force
when the concept of right is overused. Also in this respect
their employment in normative discourse can be compared to the
use of the concept of law in science. A scientific fundamental
principle reading that there is a certain order or relation of
phenomena which is invariable can only be relied upon if no
other, contradictory principle has been formulated and is proposed
at the same time by other scientists. And to be very
influential its scope must also be universal or quite general.
The conditions which are a prerequisite for the principle to
hold should not be so specific that it is called "a fundamental
law" while merely applying to rare instances. (Moreover --as we
will see in
the Book of Fundamentals--, describing
fundamental physical principles in nature as "laws" is a product of a
world-view which is
theocentristic instead of
normistic.)
Now, the language of fundamental rights must be equally free
from incompatible
counterrights and must, similarly, remain
of a general nature.
(The two
derivative subrights of
discretionary rights are fully
compatible and no counterrights in this sense.)
A language of fundamental rights which is not of a general
nature loses its emphatic character and instead of talking in
terms of rights, one might as well speak in terms of should,
should not and the state or activity in question or its opposite.
In this respect also 'special' nonderivative rights are to be defined in
general terms. To say, for example, that someone has a right to what has
been promised to
'im is a general statement,
free from specific ballast.
There is nothing against a very specific formulation of a right in
itself, so long as it is not alleged that it is fundamental.
If such a specific right is only mentioned in isolation
tho, apart from all
specific rights which could be derived from the same fundamental right,
then such a specific right is given the specious appearance of being
fundamental (or 'natural' in isolation).
This does not only lead to rights
depreciation in general, but also to the immediate weakening, if
not nullification, of related rights which can be derived from
the same fundamental right. Thus a law, declaration or normative
theory which exclusively recognizes or mentions the right to
freedom from racial discrimination, and to freedom of
religion, impairs or nullifies indirectly all other specific,
derivative rights to freedom from discrimination. Those who are or could
be discriminated against on the basis of any other factor than race or
skin color, or the sort of religion they are supposed to adhere to,
see their rights unrecognized in a conceptually most hidden or
hideous way. Unless it is eventually realized that a right to
freedom from racial discrimination, or of religion, must be a
derivative of a universal right to freedom, or to freedom from
discrimination (on the basis of whatever irrelevant factor),
they were better off without an exclusive recognition of a right
to freedom from racial discrimination, or of religion. Such is
the negative of any declaration of specific rights: the effect
of its selective neglect, the effect of its omissions.
