One of the most common questions that people ask lawyers is what their rights are in a particular situation. This will depend on what the facts of the situation are and what the applicable law to that situation is. In relation to any particular individual person, this is usually a very practical question and can usually be answered quite easily by reference to the legislation in operation in relation to that type of situation and in some cases the case law which is relevant. This is part of the natural reasoning of the British common law tradition which is in operation as system of legal principles in Australia. We have lawyers available online now who can give you professional and accurate advice about your rights if you can describe the factual situation fairly accurately.
There are also philosophical questions related to the notion of what legal rights are and what the sources of ultimate legal rights are. In legal philosophy, at the highest level, there are two major theories which describe the sources of legal rights. The first is called the theory of natural rights. The existence of natural rights has been asserted by different individuals on different premises, such as a priori philosophical reasoning or religious principles. For example, Immanuel Kant claimed to derive natural rights through “reason” alone. The Declaration of Independence, meanwhile, is based upon the “self-evident” truth that “all men are … endowed by their Creator with certain unalienable Rights”.
The other major theory of rights is known as legal positivism which holds that legal rights stem from a hegemonic authority which makes rules in the furtherance of social cohesion and harmony. One of the major theorists who posited this theory of legal rights was H. L. A. Hart who argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. T. H. Green argued that “if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life.” These types of fundamental rights are supported by natural law theorists like John Locke who emphasized “life, liberty and property” as primary. However, despite Locke’s influential defense of the right of revolution, Thomas Jefferson substituted “pursuit of happiness” in place of “property” in the United States Declaration of Independence. Whatever your philosophical view of the source of legal rights, if you would like legal advice in relation to your rights, please do not hesitate to contact us regarding this matter using the contact form to the right.