Human Rights versus Legal Rights

Many of the issues we discuss here on F4E are really human and civil rights. Too often, these terms are used without any real understanding of what they mean.

(These thoughts were sparked by an excerpt from the "Daily India" show )


Much of the 20th century was spent trying to define Human Rights in various documents. Very often, the definitions referred to historical documents which defined Civil Rights within one culture or another (the UK -Magna Carta - or the US Constitution, usually).

For example, Does a father (or mother) have a human right to access to their children?
Intuitively, every person associated with this group would shout: "Yes!"

The idea that a parent doesn't have the right to be a part of their children's lives seems too simple an idea to question.
Why does something so basic have to be questioned? -- Because unless it is defined within the law, the right does not exist. It is not explicitly defined anywhere in the law.
Some people will say that it exists in Common Law, but give me a minute.


Civil Rights are defined by the government. Usually the term, "Civil Rights" refer to a body of practice about how the law is applied.

There is still the letter of the laws themselves.

Effectively, the right of a parent to their children is defined in the laws. Presently, the parents share that responsibility with the state. The laws of Australia define under what circumstances a parent may be a part of their children's lives.
For example, if a parent is abusive, that parent may be removed from their children's lives -- by law.

The state has overridden the intuitive perception that a parent should be a part of their child's life, and taken that responsibility upon themselves.
The state has defined the Civil Rights of the parent and the child.

So where does Common Law come in?
Common Law is based on the history of how laws have been put to use. The intuitive rights of parent are defined in Common Law repeatedly, in every conceivable way. In order to apply Common Law to a question before a court, someone must cite the historical decision (and hope that the opposing counsel has not found a more recent or more similar example.)
Some people will say that Common Law Rights are based on 'common sense', but that isn't true. All it takes is a quick look at the stories on this group to see that.

In effect, Common Law Rights do not exist. Why? Because in the practice of law through history rights have been defined in every conceivable way. The only 'common sense' to it is that rights are defined to suit the politics of the government at the moment.
The Australian papers are full of examples every day: speed cameras used for revenue raising; government corruption; unpopular wars; etc.
The brutal, prejudiced way family law has been implemented is just another example. Unfortunately, this issue does not make the papers often.

In order for rights of any kind to exist in Common Law there must be a legally defined way to exercise those rights. In other words, if there isn't a law, it ain't a right -- human, civil, or otherwise.
And Common Law follows every decision, right or wrong.


The letter of the law depends completely on the goodwill of those who enforce that law. And how people enforce a law depends on the politics at the time, and the general myths of common perception.

My reason for citing the article from the Daily India show is to point out that this is a much larger, international debate that has continued throughout history. The debate has become much more intense during the 20th century.

--Paul