The Existence of Human Rights

Abstract

Human rights are first, universal, second, fundamental, third, abstract, and fourth, moral rights that, fifth, take priority over all other norms. For the question of the existence of human rights, the fourth defining element, the moral character of human rights, is of special significance. The purely moral character distinguishes human rights from constitutional rights. Constitutional rights are positive law at the level of the constitution. This, however, is not to say that no connection exists between human rights and constitutional rights. On the contrary, constitutional rights have to be defined as rights that have been recorded in a constitution with the intention of transforming human rights into positive law. In this respect, constitutional rights have, along with their real dimension, an ideal dimension, that is, they have a dual nature. This implies that the problem of the existence of human rights is essential for constitutional rights, too. Now, human rights exist if they are justifiable. Eight justifications of human rights are considered: the religious, the biological, the intuitive, the consensual, the instrumental, the cultural, the explicative, and the existential. The result of this analysis is an explicative-existential justification, which, while not a perfect justification, is a good justification.