Legal Rights and the State

Appeals to human rights work on our moral sense, but how successful such appeals actually are depends heavily on one thing above all: whether governments and the law support them. This is why the legal recognition of rights matters so much in practice. Many countries enshrine a Bill of Rights in their constitution, and because a constitution is the highest law of the land, constitutional recognition gives certain rights primary importance — in India, these constitutionally guaranteed rights are called Fundamental Rights, and other ordinary laws and government policies are expected to respect them. The rights a constitution lists are usually those considered to be of basic importance to everyone, though a country's own history and customs can add further claims — India's constitutional provision banning untouchability, which targets a specific traditional social practice, is one such example.

Because legal and constitutional recognition matters so much, some theorists go further and define rights simply as claims that the state recognises. But legal endorsement, important as it is, is not what actually justifies or grounds a right — as this chapter has already shown, rights have repeatedly been expanded and reinterpreted over time to include groups that earlier laws had excluded, which means the law follows and eventually catches up with a right's moral justification, rather than being the source of it.

In most cases, the rights people claim are ultimately directed at the state — that is, when I assert a right, I am making a demand on the state, even where society or private groups also play a role. Take the right to education: when I claim it, I am calling on the state to make provision for basic schooling. Society may support this too — other groups may open schools or fund scholarships — but the primary responsibility for making sure my right is actually fulfilled rests with the state, since it is the state that must take the necessary first steps. …