The above account of rights was written largely from the standpoint of Anglo-American law and philosophy. It should be noted, however, that there is an aspect of legal rights that is found among continental European writers, but of which there is no trace in the Anglo-American tradition. It is the description of rights as “subjective” (subjective rights; subjective rights). Ownership and | Rights | Rights: | Constitutions also differ in the extent to which human rights recognized in international law or by virtue of an international treaty are recognized in domestic law. In some European countries, for example, the European Convention on Human Rights and related decisions of the European Court of Human Rights are transposed into national law and take precedence over any national law incompatible with them. In others, such as the United Kingdom, the courts must interpret legislation as far as possible so that it is compatible with the Convention, but do not have the power to remove it, even if they consider it manifestly contradictory. The issue is often complicated legally by the fact that the legislator does not give clear indications as to whether it only wanted to create a crime with a particular law or also give citizens civil rights. Another complication may be that criminal courts sometimes perform a quasi-civil function (for example, issuing an order for restoration or compensation following a conviction for theft) and vice versa (for example, the power of a civil court to award punitive or exemplary damages). In the examples above, we can say that, unlike the correct type, the legal token is only created when the condition of its instantiation is triggered. But legal systems sometimes say that the legal sign exists before the conditions for the exercise of the right are met.
Essentially, it is the difference between the statement “if p, X is entitled to A” and “X is entitled, if p, to A”. In the latter case, the implication that the right token exists now is not just that it will exist. Why should we say that? One of the proposed responses is that, contrary to morality, legal systems have developed sets of rules for the transfer of rights even before the condition for triggering the exercise of the right has arisen. Instead, most authors argued that rights should be analyzed in other, more fundamental terms, primarily duty, permission, and power, perhaps with the addition of other criteria. This means that not all rights will be of great importance. Their importance depends on the strength of the reasons of duty, permission, or power. Before examining these reports more closely, it is worth mentioning another point. Theorists are divided between those who believe that rights are, so to speak, the “reflex” of duty, permission, or power, and those who believe that the law takes precedence over them. The question is whether duty, etc. establishes the right or whether the law establishes duty. Most older authors (e.g. Bentham, Austin, Hohfeld, Kelsen) seem to have adhered to the first view, while more recent authors (e.g.
MacCormick, Raz, Wellman) adopt the second view. The second view implies that the force of a right is not necessarily exhausted by an existing set of duties, etc., that flow from it, but may be a reason for the creation of new obligations as circumstances change. The latter view, at least, seems to be more consistent with the operation of constitutional legal claims. A more modern version of this theory was proposed by MacCormick (1977), who argued that a rights holder was the intended recipient of a particular benefit and not just a general beneficiary of the rules. However, even with this change, it remains difficult to explain the rights of third parties under contracts. Suppose that X and Y enter into a contract imposing customs duties on each of them, with the intention that the performance of those obligations will benefit Z. According to the theory, Z must (conceptually) be a legitimate rights holder. But it is indeed a completely random question of whether Z is or not. Some legal systems recognize Z rights in such a situation, others do not. In the United Kingdom, for example, Scots law recognized these rights for a long time under certain conditions, but English law did not do so until the situation was changed by law in 1999. An overview of Hart`s theory (1973) can be given as an illustration of the first point of view. According to Hart, someone (call him “X”) can be a legitimate rights holder, mainly in two ways.
First, X may have bilateral authorization to perform an act, i.e. X is authorized to both A and non-A (with certain prohibitions for others to interfere). Second, someone else may have an obligation (e.g. to pay £10) over which X has control, mainly by waiver or performance. Since X has a choice in all cases, this explains why he is called the rights holder. One of the difficulties with this type of theory is to explain our apparent reference to rights when there is no choice, for example when one not only has the right to vote, but is also legally required to do so. The answer will often revolve around whether to adopt a theory of interest or a right-wing electoral theory. MacCormick (1976), for example, argued that any theory of rights that could not take into account children`s rights must be erroneous, which, in his view, was a reason for adopting an interest rate theory. Wellman (1995), for his part, argues that the assertion that very young children or people with serious mental illness may have legal rights distorts the concept of law because they lack proper control of the legal system. Instead, these rights should only be exercised by those who can bring such actions on their behalf.
For example, in his view, a very young child would not have the right not to be harmed by neglect by someone else`s behaviour. On the contrary, the child`s parents would have the right not to have their child injured through negligence. One of the difficulties with this position seems to be that it is not easily compatible with the relevant remedies (e.g. for damages) that the law would recognize. In this example, the law would clearly compensate for the loss of the child due to the injury, not the loss of the parent due to the injury of his or her child (although the latter may be a separate cause of action in some systems). The First Amendment protects your right to assemble and express your opinions through protest. Other approaches can be classified in different ways, but there is a significant gap between those who believe that rights are designated as practical reasons by their great weight and those who believe that rights are nothing special in this regard, but rather must be analyzed in duties, permits, powers, etc. or a combination of these. perhaps with the addition of other conditions. In most modern legal systems, certain fundamental rights are conferred by the Constitution. This usually gives them some precedence over competing legal considerations, but it can vary from system to system.
Sometimes constitutional rights take absolute precedence over any other consideration that is not itself based on a constitutional right.