Civil rights

Civil rights are the protections and privileges of personal liberty given to all citizens by law. Civil rights are distinguished from "human rights" or "natural rights"&mdash;civil rights are rights that are bestowed by nations on those within their territorial boundaries, while natural or human rights are rights that many scholars claim ought to belong to all people. For example, the philosopher John Locke (1632–1704) argued that the natural rights of life, liberty and property should be converted into civil rights and protected by the sovereign state as an aspect of the social contract. Others have argued that people acquire rights as an inalienable gift from the deity or at a time of nature before governments were formed.

Laws guaranteeing civil rights may be written, derived from custom or implied. In the United States and most continental European counties, civil rights laws are most often written. In the United States, for example, laws protecting civil rights appear in the Constitution, in the amendments to the Constitution (particularly the 13th and 14th Amendments), in federal statutes, in state constitutions and statutes and even in the ordinances of counties and cities. In the United Kingdom, on the other hand, such rights are frequently granted by custom and are not memorialized in written law. "Implied" rights are rights that a court may find to exist even though not expressly guaranteed by written law or custom, on the theory that a written or customary right must necessarily include the implied right. One famous (and controversial) example of a right implied from the U.S. Constitution is the "right to privacy", which the U.S. Supreme Court found to exist in the 1965 case of Griswold v. Connecticut. In the 1973 case of Roe v. Wade, the Court found that state legislation prohibiting or limiting abortion violated this right to privacy.

State governments can expand civil rights beyond the U.S. Constitution, but they cannot diminish Constitutional rights. For example, some American cities make it illegal to discriminate against persons on the basis of their sexual orientation, thus expanding the civil rights of homosexuals; however, cities which create school districts in such a way that the districts discriminate against students on the basis of their race will have injunctions entered against them by the federal courts. States frequently grant civil rights in excess of federal law, such as Article 21 of the Maryland Constitution, which requires that a jury be unanimous in order to convict a person of a crime.

Examples of civil rights and liberties include the right to get redress if injured by another, the right to privacy, the right of peaceful protest, the right to a fair investigation and trial if suspected of a crime, and more generally-based constitutional rights such as the right to vote, the right to personal freedom, the right to life, the right to freedom of movement and anti-discrimination laws. As civilisations emerged and formalised through written constitutions, some of the more important civil rights were granted to citizens. When those grants were later found inadequate, civil rights movements emerged as the vehicle for claiming more equal protection for all citizens and advocating new laws to restrict the effect of current discriminations.

Civil rights can in one sense refer to the equal treatment of all citizens irrespective of race, sex, or other class, or it can refer to laws which invoke claims of positive liberty. An example of the former would be the decision in Brown v. Board of Education 347 U.S. 483 (1954) which was concerned with the constitutionality of laws which imposed segregation in the education systems of some U.S states. The theories set out below explain why such laws should not be considered legitimate, but do not explain why the case failed to declare the general principle that all manifestations of segregation were a breach of civil rights (that would be more properly a question of politics). The U.S. legislature subsequently addressed the issue through the Civil Rights Act of 1964 Sec. 201. which states: (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. Some other countries have enacted similar legislation, or have given direct effect to supranational treaties and agreements such as the European Convention on Human Rights (with forty-five countries as signatories), which encompass both human rights and civil liberties.

Related terminology
The term 'civil rights' is often used synonymously with civil liberties, even though theoretical jurisprudence distinguishes between right and liberty (see below: Hohfeld). The root of the word 'civil' reflects the association between a bundle of rights and 'citizenship'. The term Human rights refers to a broader concept.

In the early legal systems of Ancient Rome,women and slaves had no right to vote whether as a juror or for political purposes, and ownership of property was an aspect of patria potestas, i.e. only the father of the family could own property, his wife, relatives and children having no right of ownership. Similarly, the mediaeval European city-states limited access to the status of citizenship and the civil rights associated with it. This practice of dividing societies by reference to class or caste associates privilege with the upper layers of society and means that civil rights attach to people by virute of their citizenship of a state.

Today, in most western societies, it is taken for granted that every person has a number of rights and freedoms, which are valued deeply, closely associated to the modern concept of democracy and supported by public policy. Civil rights are claimed to be the pillars of modern societies. Nevertheless, it is domicile that attaches to an individual at birth, regardless of such factors as race, gender or class, and determines status and capacity. As each individual moves from state to state, the extent of the civil rights to be enjoyed will be determined by the interaction between the domicile of origin, and the cultures and laws of those states in which that person resides as a citizen.

The term human rights is not limited to citizenship of one state and reflects the concept of fundamental rights that all human beings can claim. Whereas 'civil rights', 'civil liberties' and 'constitutional rights' are used to denote expectations as to behaviour and treatment by fellow citizens in any one sovereign state, 'human rights' is more often used in the context of international law, the supranational systems of law that may or may not have direct effect in sovereign states depending on the treaties signed by each state and the nature of their legal systems. Human rights include civil rights. The term may also refer to the rights of refugees and the problems of statelessness; however, the debate on the extent of fundamental human rights is much broader subject. Jurist Karel Vasak, for example, discusses a right to peace and the right to a clean environment as fundamental human rights.

Theoretical background: The concept of right
Wesley Newcomb Hohfeld (1879–1918) maintained that analysis of legal issues is frequently muddled and inconsistent because the legal concepts are improperly understood. The first question, therefore, is to understand what the rights are in "civil rights". There are two major schools of thought:
 * Hohfeld proposed a structured system of interrelated concepts
 * Nozick and Rawls approached the concept of rights from the perspectives of libertarian and political belief.

Hohfeld's concept of right
Hohfeld distinguished right from liberty, and power from immunity&mdash;concepts that are often used interchangeably in non-technical discourse, but are philosophically different. By examining the relationships between these concepts, he hoped to explain the legal interests that have evolved in the real world of civil society and to answer the question whether citizens of a state have any right to access any of the possible forms of social security.
 * Right and duty are corelative concepts, i.e. one must always be matched by the other. If A claims a right against B, this is meaningless unless B has a duty to honour A's right. If B has no duty, that means that B has liberty, i.e. B can do whatever he or she pleases because B has no duty to refrain from doing it, and A has no right to prohibit B from doing so. An individual would be considered to have perfect liberty if no one has a right to prevent the given act.
 * Power means the capacity to create legal relationships and to create rights and liabilities. The corelative of power is liability. If A has power over B, B must have liability towards A. For example, properly constituted courts have the power to pass judgements that impose liabilities but, if the defendants are outside the courts' jurisdiction, the judgements are unenforceable. Similarly, a legislature has power to make laws, but those laws that attempt to restrict a fundamental right may be unconstitutional. If the laws are valid, they create a disability; the legal opposite of disability is power. So, children or people suffering from a mental disability should be protected from liability and their power to make a binding contract is removed. A person loses the right to sue another to recover a debt if the period of limitation has expired.
 * The legal opposite of liability is immunity. In some countries, government departments exercising sovereign powers cannot be sued in tort and the President or the Prime Minister cannot be personally liable in respect of any contract made or assurance given for the purposes of the state. These are examples of immunities.

Although the word right is often used to describe liberty, power, or immunity, Hohfeld clearly distinguished them. Indeed, Hohfeld described liberty as an a priori condition of the rule of law, coming into existence long before any Bill of Rights and offering an individual power to the extent that it is not restricted by any law. Essentially, Hohfeld believed that anyone who tries to encroach on the liberty of a citizen must be required to demonstrate their clear right to do so. After more than eighty years of consideration, some doubt whether this set of conceptual relationships is philosophically sustainable. But, the core juxtaposition of right, duty and liberty remains a seductive argument.

Minimal state
Robert Nozick (1938–2003) offered a model of a "minimal state", described as libertarianism. Nozick argued that no state is ever justified in offering anything more than the most minimal of state functions, and further, that whatever might exist by way of rights exists only in the negative sense of those actions not yet prohibited. He denied the possibility that any citizen can have rights that require others to offer him or her services at the state's expense, and tested whether exchanges between individuals were legitimate by an entitlement theory:
 * The "transfer principle" holds that goods or services "freely acquired from others who acquired them in a just way are justly acquired"
 * The "acquisition principle" states that people are entitled to retain all holdings acquired in a just way
 * The "rectification principle" requires that any violation of the first two principles be repaired by returning holdings to their rightful owners as a "one time" redistribution (a reference to the Rawlsian Difference Principle).

Nozick, therefore, believed that there are no positive civil rights, only rights to property and the right of autonomy. For him, a just society does as much as possible to protect everyone's independence and freedom to take any action for the benefit of one's self. This is an important teleological protection: the Jeffersonian political philosphy right to the pursuit of happiness is the freedom to engage in any actions so long as they do not infringe upon that same right exercised by others.

Critics of the minimal state-model argue that a state which provides no services to citizens is inadequate.

Just society
John Rawls (1921–2002) developed a model of a different form of just society which relied on:
 * The "liberty principle" which holds that citizens require minimal civil and legal rights to protect themselves
 * The "difference principle" which states that every citizen would want to live in a society where improving the condition of the poorest becomes the first priority.

For Rawls, a right is an "entitlement or justified claim on others" which comprises both negative and positive obligations, i.e. both that others must not harm anyone (negative obligation), and surrender a proportion of their earnings through taxation for the benefit of low-income earners (positive). This blurs the relationship between rights and duties as proposed by Hohfeld. For example if a citizen had the right to free medical care, then others (through the agency of the government) would be obligated to provide that service.

Critics of Rawls' approach doubt whether the difference principle is congruous with a state consistently applying the capitalist model. Rawl's ideas however have influenced the implementation of social market economies within a capitalist system in European countries like Germany.

The difference between Rawls and Nozick is that Rawls thought that a state should always provide the basic fundamentals of physical existence, whereas Nozick gave no guarantee save that an individual always had the freedom to pursue h