certain enacted human rights should be repealed, as they do not reflect a real
fundamental moral right.
Added Value of Legal Human Rights At the same time, the legal dimension of
human rights provides stability and clarity to the human rights. Disagreement is
much more prevalent in morality and political ideology than in law, and it is very
beneficial to agree on an official list of human rights that could be relied upon by all
despite of ideological differences.
To give an example, some ideologies make strong claims against certain human rights. In
the left, the more radical forms of socialism do not recognize the right to property. On the
right, radical libertarians would not recognize any right to welfare, as that would imply
resource redistribution which they strongly oppose. Given that both radical socialists and
radical libertarians have to live together, it makes sense to define a public and official list of
legal rights that both can rely on.Impossibility to Fully Separate the Two Dimensions The preceding discussion
presents the legal and moral dimensions of human rights as analytically distinct.
Nevertheless, on a deeper level, it is questionable if it is really possible to neatly
separate the legal and moral dimensions of human rights. For one, the scope of legal
human rights is relatively undefined, and eventually reference must be made to
moral reasoning in order to give content to these rights. While it may be uncon-
tested that we all have a right to freedom of speech or privacy, it seems doubtful that
a judge may determine what constitutes speech or privacy without any reference to
moral values. Furthermore, many constitutions and treaties make reference to
unlisted rights. How does one find out what these rights are if not by reference to
some notion of moral rights?
An example is the 9th Amendment of the US Constitution which states:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
Finally, the sources of international law seem to be open to moral principles. In
particular, the notion ofius cogensmakes reference to principles that are not
codified through treaty law nor embodied in custom but which are to be identified
through reason.
More onius cogensas a source of International Law in Sect.11.3.2.12.3.3 Rights as Standards
A third dimension of human rights is that of human rights as standards for
measurement. Imagine we want to know how free a particular country is. Instead
of coming up with an idiosyncratic measurement of freedom, it might be useful to
use human rights as relatively detailed and accepted standards of what freedom
requires. For this purpose, it is not important whether the country has ratified a
particular treaty or not but rather that the treaty standards are sufficiently detailed
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