Human Rights: Natural Law vs Legal Positivism
Natural Law Doctrines on Human Rights
According to the natural law argument, the rational nature itself contains inherent and inalienable trends or operating dynamics. These trends or dynamics are subject to potential or natural powers of action within the social organization. According to this conception, human rights lie in each subject as immediate demands of their particular way of being human. Thus, individuals have rational evidence that these rights are owed to them by virtue of their own intrinsic nature, not by any affirmative grant of the politically organized society of which they are members.
Clearly, however, not all existing human rights are personal rights of primary origin (i.e., in the natural sense). Some of these rights may be derived from the primary rights indirectly and with the help of certain historical assumptions. But truly human rights (natural or proper) must be considered only those that correspond to individuals under all circumstances and situations and therefore can never be denied.
The appeal, consistency, and persuasiveness of this doctrine have been so strong that many authors have not hesitated to assert that the foundation of natural law seems to be the last chance for any attempt to reach a rational justification of human rights, especially when seeking a basis of support, from a logical-ontological standpoint, that precedes legal history. However, it should also be acknowledged that it is often not easy to know where the grounds of natural law begin and end, as some versions that consider themselves natural law maintain deep differences, at least in appearance, from typical natural law approaches.
Doctrines of Legal Positivism
According to the vision of strict legal positivism, individuals are entitled to fundamental rights insofar as the law of the state has recognized them for its citizens. This is obvious if one considers that there are no rights other than those established by law. So-called natural rights of man are nothing but fictional entities, empty words, deceptions that lead to social chaos and anarchy. The foundation of human rights is therefore in the law that recognizes and protects them.
However, as interpreted by traditional historicist positivism, the ownership of rights by citizens finds its support in the respective national legal tradition, not on abstract principles of reason that claim them as original rights of nature. Only historical rights exist; talking about natural rights of man is talking about something that has no existence.
But, for sociological positivism, the recognition and protection of human rights have a more than sufficient foundation in their effective incorporation into the practices of social life through the action of several convergent mechanisms.
Human Rights in State Constitutions: Fundamental Rights
It has become a cliché, that old principle established by the Declaration on the Rights of Man and Citizen of 1789, proclaiming in its Article 16 that “any society in which the security of rights is not assured, nor the separation of powers established, has no constitution.”
Indeed, the powerful impact of this principle, coupled with the conviction that the first and most important objective of a constitution is to protect individual rights, led bills of rights not only to become the foundation of the rule of law but also the primary element of the internal structure of new constitutions.
A reception process began and has gained momentum with the passage of time, leading to the widespread adoption and consecration of the category “fundamental rights.”
The term “fundamental rights” can now convey two clearly different meanings: the original use for rights recognized by the fundamental laws of the legal system, and the more evolved meaning referring to basic rights that all individuals possess, inherent in them by the requirement of personal dignity.