Modern societies and governments proclaim freedom as the foundation of their respective political and legal systems. However, some societies and governments are more free than others, and even the most free societies and governments have some laws that regulate the citizenry. The question centers upon what basis the citizenry can not only assert, but compel, the government to respect their theoretical freedoms. The answer is through civil and political rights.
A right, in its broadest sense, is a power, privilege, or protection granted or recognized by a legitimate authority, law, or usage. Power means the actual ability or authority to perform a certain act. An example of a power is the U.S. president’s power to command the military forces. Privilege means a particular benefit or advantage that may be claimed or exercised. An example of a privilege is a permit for a handicapped person to park in a designated handicapped-parking place. Protection refers to an immunity or a shield from certain duties, responsibilities, or acts of others. An example of a protection is the right to receive a trial after being arrested for a crime.
A legitimate authority, law, or usage recognizes the source of rights. It is indisputable that the law can be a legitimate source of rights. Usage refers to the continued social recognition of a right. Once a particular right is commonly accepted and practiced in a society over a period of time, it is frequently considered binding. This is how the common law of ancient England developed over time. Common practices, frequently called norms, became accepted over time and eventually were considered to be law. The term authority refers to other sources of rights besides law or usage. The two most widely recognized sources in this sense are philosophy and religion. In philosophy, natural law is considered to be idealized expression of the morally correct way to act. It is a theoretical concept recognized by the mind as opposed to a written law created by a legislature. In religion, divine commands or laws, sometimes identified with natural law, are considered the source of rights.
What is fundamentally important about rights, as recognized by philosopher Ronald Dworkin, is that they are enforceable against the government or any other entity violating those rights. For example, many nations possess laws regulating voting, defining the requirements of who is eligible to vote. If a voter is mistreated in regard to these laws, the individual’s rights have been violated and legal redress can be sought. Thinkers in the human rights or natural rights traditions may assert that individuals have certain inalienable rights by virtue of their humanity, but these rights are yet not civil or political rights and can be understood more as aspirations for those protections to become civil rights protected by law.
A civil right can be defined in many different ways. By the term civil, the right is usually meant to apply to all of the members of that society or political entity. However, some nations provide greater civil rights to their own citizens than they do to foreign nationals. The use of the term civil usually distinguishes civil law from criminal law. Although it can be argued that a civil right differs from a criminal right, in practice, in many countries, a right that protects a person from abuse in the criminal justice system is, nonetheless, referred to as a civil right. This is true in the criminal justice system of the United States. Although the Fourth, Fifth, and Sixth Amendments in the Bill of Rights of the U.S. Constitution address certain protections for persons charged with a crime, these rights are still called civil rights. Another aspect of civil rights is that such rights can usually be enforced in a nation’s civil courts.
In contrast, political rights are usually considered a subcategory of civil rights. The term political rights generally refers to those activities related to the formation or creation of a political or legal system and the participation in the political process. The most frequently acknowledged political rights are the right to national self-determination, the right of citizenship, the right to free speech, the right to vote, the right to hold political office, and the right to petition.
Civil and political rights are also recognized internationally, as in the United Nations Charter, in Articles 1, 62, 68, and 76. Although many of the provisions of the UN Charter are considered merely aspirational and not binding, most of the world’s nations have signed the International Covenant on Civil and Political Rights (a part of the International Bill of Rights), and this is considered binding under international law.
Civil and political rights are the mechanism by which people can attempt to ensure their basic freedoms and obtain fair treatment from their respective governments. However, if these civil and political rights lack any enforcement power, any civil or political rights usually become, as Chief Justice Earl Warren of the U.S. Supreme Court stated, a mere form of words and without meaning or substance. Some violations of internationally recognized civil and political rights, such as genocide, can be prosecuted in the International Criminal Court and limited international tribunals are sometimes established to enforce violations concerning specific situations.
- Dworkin, Ronald. Taking Rights Seriously. Cambridge, Mass.: Harvard University Press, 1977.
- Epstein, Lee, and Thomas G.Walker. Rights, Liberties, and Justice, 5th ed. Washington, D.C.: Pearson, 2004.
- Frohnen, Bruce, and Kenneth L. Grasso. Rethinking Rights: Historical, Political, and Philosophical Perspectives. Columbia: University of Missouri Press, 2009.
- O’Brien, David M., ed. The Lanahan Readings in Civil Rights and Civil Liberties, 2nd ed. Baltimore: Lanahan, 2003.
- Rotunda, Ronald, and John Nowak. Treatise on Constitutional Law, 3rd ed. St. Paul, Minn.:West Group, 1999.
- Sullivan, Harold J. Civil Rights and Liberties, 2nd ed. Englewood Cliffs, N.J.: Pearson, 2005.