The Basis of a Right

We have discussed that a "right" is a "just claim". We also made it clear that a "right" is not absolute because a person may have a "just claim" over one and the same "right" in the same manner or measure as another. We also established that a "right" must have a "basis" or else it cannot be possessed, owned, exercised, enjoyed, etc for no one cannot just pluck out of the empty air any "just claim".

Let us discuss some more about the "bases" of a "right" for as we said, no "right" can merely be plucked out of empty air. No one could merely say it is his "right" to speak, travel or live anywhere he wants to reside because he "wants" it. It would be result to a useless and lengthy debate and argumentation and most probably end up in what we do not like so much to happen, the imposition of the dictum "might is right" when the opposite is more acceptable and probably true and fair, that is, "right is might".

The truly acceptable bases of a "right" is a "law". There are many definitions of law but one which seems to be most consistent with man's rational nature is that of St. Thomas Aquinas, and it is stated as "nothing other than a certain dictate of reason for the common good, made by him who has the care of the community and promulgated." Here the Saint establishes important ingredients of what a law should be: [1] a law must be reasonable, [2] must be for the common good, [3] must come from an authority, and [4] must be promulgated. Most if not all modern laws have these qualities of a law.

[1] Reasonable means that it is based on the rationality of man or his nature as a thinking animal. A law cannot be based on a whim, a fad, or passing desire, or anything that does not come from man's deliberation or process of decision-making. It cannot be based on the mere interests of a privileged few or the "wants" of a vote rich sector of society or district of a community therefore it must not be made merely due to political exigency, economic interests and socio-cultural experimentation. It must be based on the grounds of fairness, propriety and equity, or perhaps "truth, justice and peace". 

[2] A law must be for the common good. It may not actually benefit each and everyone in the same manner or measure but it has to be made for the sake of each and everyone. Laws that tend to favor only a few or a chosen group is called class legislation and is not acceptable in most countries. For example, traffic laws are enforced for every person to be assured of safety in the use of roads though not every person may be using the road. Holidays in celebration of a religious observance of a church or any other religious group may be proclaimed but not only the members of the said group have to benefit from the holiday but even those who are non-members.

[3] A law must come from an authority. No one could make a law to be enforced upon others without the power vested in him to do such a thing. In most countries, laws are enacted by a Congress or a Parliament. Before, absolute monarchs had the privilege of making laws by themselves, some have advisers to help them but still only the monarch could make laws. 

[4] A law must be promulgated, that is, it is made known. Though we have the saying that "ignorance of the law is not an excuse" it is only enforceable after it has been promulgated or made known to all who need to know the law that they may follow it. It cannot be kept hidden. Though it is not necessary to go to every person to tell him about the law, the practice these days especially with regards to national laws is to have them printed in newspapers of general circulation that at least people may have the opportunity to read them. 

Now that we have made it clear that "rights" should be based on law, we may raise the question as to what kind of law do we base a "right"?  The most common laws to us are man made laws also called positive laws or more particularly, human positive laws. But if we merely say these human positive  laws would be our bases for the possession, ownership, exercise or enjoyment of "rights", how can we claim the so-called "human rights" when these rights are observably more primitive than man made laws. Before any law on the freedom of expression have been made, man have already been claiming that "right" to express himself. Before a law on property have been made, people have been owning things already and the property law was merely enacted to confirm the said "right". Surely, there must be some other laws aside from man made laws upon which people could base the "first or prime rights" such as the human rights. 

We shall discuss this matter in the next article.