The difference between a power and a right
A right is inherent. It does not have to be written down anywhere. For example, the right to life, the right to religious freedom, the right to speak freely, or the right to associate with anyone one chooses. Some writers refer to rights enshrined in the Constitution. These inalienable rights above are different, and far […]
A right is inherent. It does not have to be written down anywhere. For example, the right to life, the right to religious freedom, the right to speak freely, or the right to associate with anyone one chooses. Some writers refer to rights enshrined in the Constitution. These inalienable rights above are different, and far superior to constitutional rights.
A power has its genesis either in constitutional law, common law or statute. And powers are usually and inevitably exercised by institutions: the legislature, the executive, or the judiciary.
In the so called free world, where there is some semblance of a bicameral parliament, the head of state, like President of the US or the Prime Minister, has at least two kinds of powers: some exercisable as of right by virtue of his office; and some only with the consent of the legislature.
In limited circumstances the law grants certain powers to individuals. A very good example is the right to effect a citizen’s arrest: yet that is circumscribed by a number of factors.
So, rights and powers are not the same thing.
When does a power become a right?
Examples are difficult to come by, and are not easily distinguishable. These fall into a grey area. An example (and there could be many) is the power of a judge to grant certain orders. When a case is being litigated before one judge (say divorce proceedings) it is not open to the litigants in the first court, or indeed another judge in another court—to do anything that would interfere with the work of the first judge. The judge in the first court has the right, acting properly within his jurisdiction, to issue orders preventing any such interference.
Purists would argue that that it is not a right but a power.
That may well be correct. Hence the caveat as to grey areas in the law.
But before we depart, if you want an ‘American answer’, here are some samples:
The US Declaration of Independence 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, that among these are Life, Liberty and the pursuit of Happiness…. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…’.
The Ninth Amendment to the US Constitution states: –
‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people’.