In principle, one can use human rights in (at least) four different ways, only one of
which is, strictly speaking, legal, namely as: (1) positive law, (2) moral standards,
(3) standards for measurement, and (4) a political language.
12.3.1 Human Rights as Positive Law
Human rights are a legal reality. From this perspective, they exist after they are
created by law, and to know what rights we have, we have to look at the relevant
sources of law that are currently in force. Normally the place to look will be the
constitution and ratified international treaties. This view cannot be the whole story.
Taken to the extreme, this point of view leaves very little room for the notion that
allhuman beings have the same rights, merely by virtue of existing.
12.3.2 Rights as Moral Ideals
The existence or lack of existence of rights as a legal reality does not impede their
existence as a moral ideal. The latter is independent of the law and is best expressed
in the often repeated point that human rights are not enacted by law but merely
officially recognized.
For instance, the preamble of the United States Declaration of Independence (1776) clearly
upholds this view when it states:
“We hold these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights[...]”.
Likewise, the preamble of the United Nations Universal Declaration of Human Rights
(1948) speaks of “recognizing inherent rights”:
“Whereas recognition of the inherent dignity and of the equal and inalienable rights of
all members of the human family is the foundation of freedom, justice and peace in the
world[...]”.
These two dimensions—human rights as positive law and as moral ideals—need
not be seen as contradictory. In a legal sense, human rights exist when they are
officially incorporated in the legal system through treaties, statutes, or the constitu-
tion. Yet this remains independent of their existence as a moral ideal.
Interplay Positive Law and Moral Ideals In fact, the moral dimension of rights
allows us to criticize the legal dimension. Assume, for instance, that country X is a
dictatorship that does not mention human rights in its domestic legislation and that
it has not ratified any human rights treaty. Even then, it still makes sense to say that
the dictator of country X, who commits torture and censors the press, violates the
human rights of his citizens. The legalistic reply that citizens of country X have no
rights because no legal instrument has granted them rights misses the point. The
right answer is that the moral rights of the citizens of X are being violated and that
the state must enact laws that recognize these rights. Likewise, one could argue that
266 G. Arosemena