class 1 and 2

Question 1

what are synonyms of human rights?

Answer 1

fundamental or universal rights

Question 2

what is a human right?

Answer 2

class or type of right which essential note is to be pre-existent (doesn’t depend) to positive law. and that doesn’t need legislation (basic rights)

Question 3

what is positive law?

Answer 3

law that was legislated within certain societies (proof of democracy) and enforced at a specific time (LEGISLATION)

Question 4

what is a basic right?

Answer 4

born our of a necessity (human nature) not created by positive law, but acknowledged. (different needs but not the same satisfaction)

Question 5

what are the three basic rights?

Answer 5

a) right to life (not a commodity, water, food)
b) freedom (not in all regimes thought and speech)
c) property

Question 6

give an example of the third basic right.

Answer 6

positive prescription of property: becoming an owner of land and taking care of it for a period of time (positive right created by legislation)

Question 7

what are the 7 basic human values for Finnis?

Answer 7

life (reproductive rights), knowledge, political reasonableness (a rational process that brings out certain consequences (unity between thought and action), play (amusement), aesthetic experience (appreciation of beauty), friendship, religion (to have faith or not, moral practice)

Question 8

what are the six philosophical perspectives of human rights?

Answer 8

marxism, anglo-saxon individualism, positivism, contemporary IUS naturalism, utilitarianism, consensualism

Question 9

explain marxism

Answer 9

• the law is a means of oppression created by capitalists.
  -human rights equal social rights to build up to the common good (collectivity),
• there is no real conception of human rights and there is this kind of self-fulfillment regarding social rights

Question 10

explain anglo-saxon individualism

Answer 10

• the person is the basis of all rights (individuality)
• an individual has the right to be tolerated by the other (freedom of your personality) they can do whatever they please except harm, coercion
• laws that apply to individual are the only ones that matter
• based on first generation of HR

Question 11

explain positivism

Answer 11

(Ferrajoli)
- fundamental rights are subjectove rights (operational) for them to be operational, they need to be coded and be positive law
- expectations (positive of negative results on subjective rights)
- traditional rulings of a judge

Question 12

explain contemporary Ius naturalism

Answer 12

part of god given rights (only certain)
because we are human beings we have rights
legal rights (positive rights in the constitution) are a due process
certain rights may apply to corporations like tax rulings
In certain places an act of god can invalidate insurance (more of an expression –> cannot file a claim against god

Question 13

what is due process?

Answer 13

a requirement that legal matters be resolved according to established rules and principles and that individuals be treated fairly

Question 14

explain utilitarianism

Answer 14

• Bentham –> most known utilitarian
• did not agree with human rights (seen at the time as natural law) because there is no moral content in the law. needed to be plain, abstract, amoral law with no moral change

Question 15

what are primafacie rights (related to utilitarianism?)

Answer 15

rights at first glance
- human rights (life, intimacy, freedom) unnoposable (supremacy over the rest of the rights)
- could e changed if it gave better results to what they want to achieve
- according to specific needs
- when they defend “common good”, there is sometimes collateral damage
NB.better to sacrifice a few than all perish

Question 16

explain consensualism

Answer 16

we need to agree (everytgung need to by said by consensus/agreement)
- love positive law
- gives a broad sense to law (includes international law (it is more important to agree upon than the rights themselves (states, society, congress, parliament)
- care that people agree on human rights more than about the rights themselves