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MODEL OF NEUTRAL-INCLUSIVITY
BOOK OF INSTRUMENTS
RIGHT-DUTY CONSTELLATIONS

8.4 

WAYS OF LOSING OR WEAKENING RIGHTS

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.


©MVVM, 41-57 ASWW
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Model of Neutral-Inclusivity
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Ways of Losing or Weakening Rights
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