Rights have been defined as interests that are recognized by law and judicially protected. This definition, however, does not give due recognition to rights whose origin is not law. Philosophers in both common law and civil law traditions distinguish between moral and legal rights. Positivists hold that legal rights, by definition, derive from the legal system, that is, the Constitution, legislative enactments, case law, executive orders and other legal texts. The legal rules derived from these sources constitute standards by which to judge official practice.

Rights are always associated with a duty or obligation. If a person has a right, he/she has an interest that is sufficient grounds for holding another subject to a duty. Rights also suppose a correlative obligation on the part of some person or other legal entity. It is a basic legal maxim that each right is accompanied by a corresponding duty, although typically the right and the duty are held by different persons or entities.

This does not mean that a right being claimed does not exist unless the holder of the duty is clearly defined; rather it merely highlights the importance of ensuring that there is an effective remedy for preventing any violation of the right and for ensuring recognition of it. Inadequacies in the legal arrangements for providing remedies do not remove the right itself, as the presence or other possibility of recourse to third party judicial procedures is not the test of whether the right exists or not. In international law, if not in municipal law, the existence of a legal right is tested by reference to the sources of law, rather than by the presence of efficacious judicial remedies.

Indeed, in the international legal arena, enforcement of rights is often problematic. Human rights are an example of rights whose origin and existence are not perceived as contingent on explicit recognition in a positivist legal system. Human rights are considered as rights held simply by virtue of being a human being. They are part and parcel of the integrity and dignity of the individual. They are thus rights that cannot be given or withdrawn at will by any legal system. And although they are most effectively implemented through a legal system, the system is not the source of the right.

The concept of rights, meanwhile, differs from the concept of principles, although both are useful for problem solving. The rights discussed above, the human rights such as the right to development, can be properly seen as "entitlements" or "claims" imposing obligations on others. Principles, however, possess different normative characteristics and serve a different function. As suggested by Dworkin in Taking Rights Seriously, principles are standards that are adhered to, on the basis of justice, fairness or other moral dimension. They do not demand a particular outcome, but are important factors to be taken into consideration when decision-making occurs.

Using Dworkin's definition, legal principles are distinguishable from legal rules in that they do not mandate a specific decision. A principle, however, must be taken into consideration whenever it is relevant. Rules, by contrast, which Dworkin equated with law, must be observed. The failure to observe a rule can result automatically in legal consequences, including sanctions. "Rules" may form the core of legal rights but they are supported, elaborated and backed up by the whole normative order going beyond rules to include policies, principles and goals.

Rules, principles, and rights all are normative in nature and serve a social ordering function. Where rules (law) differ from the other normative elements is in the methods invoked to fulfil its function. Non-compliance with rules can result in sanctions that will help ensure future compliance in given situations. Most of the time rules formalizes other aspects of the normative order, like policy, and make them binding.

For positivists, the non-law elements of the normative order are "soft law." But even most positivits acknowledge that soft law can have substantial legal effects, particularly in practice. Indeed, in international law, soft law sometimes plays a more prominent role than in municipal (state) legal systems, and its role is likely to continue to grow in the future.

Proceed to Part III

For more information, contact: Owen J. Lynch (olynch@ciel.org).