The Difference between Human and Fundamental Rights

We understand human rights as a limitation placed on the actions of the State in relation to individuals, granting them certain freedom in accordance with their own condition as human beings.

Reviewed and approved by the psychologist Gema Sánchez Cuevas.

Written by Patricia Grande Yeves

Last update: 21 December, 2022

Fundamental rights originated in France at the end of the 18th century with the Declaration of the Rights of Man and of the Citizen. The concept of human rights dates back to the natural law established by the Romans in ancient times, which were based on the rational ideas of the times.

We understand “law” to be the set of legal norms created by the State in order to regulate the conduct of individuals. Noncompliance with these norms implies a judicial sanction.

Therefore, the law establishes a basis for social coexistence, in order to provide all members with security, equality, certainty, freedom, and justice. The purpose of the law is to establish harmony, order, and social balance.

The aim of this article is to study these concepts, as well as their characteristics, differences, and social impact.

Human rights

Following the definition of law, we can introduce and understand human rights as a limitation imposed on the actions of the State in relation to individuals. This grants them certain freedom in accordance with their own condition as human beings.

Thus, human rights are indispensable in order to be able to live freely, with dignity, and in a just and peaceful environment.

All people have these rights, without exception. They make no distinction of sex, nationality, ethnicity, color, religion, residence status, language, political party, age, or social, cultural, or financial condition.

Human rights are:

• Universal
• Inviolable
• Non-transferable
• Unrenounceable
• Interdependent

Thus, the international human rights law establishes the obligation for all countries to act in a determined manner in order to promote and protect human rights and an individual’s fundamental freedoms.

We can find the foundations of this body of rules in the United Nations Charter (1945) and the Universal Declaration of Human Rights (1948).

Fundamental rights

For a fundamental right to exist, there must first be a human right. We can consider a fundamental right to be the guarantee that a country provides to individuals living within its borders. These rights are governed by a Magna Carta in the constitutions of every State, quite simply because they’re fundamental for every human being.

They’re different from other rights established by the constitutions. This is because they’re inalienable (acquired at birth) and can’t be the object of transaction or exchange.

Moreover, the defense of fundamental rights is usually a quick process in judicial terms in democratic societies. This is because we consider them to be a fundamental pillar of society.

In this way, we see that each country has its own fundamental rights. Unfortunately, in many countries, they aren’t respected.

The difference between fundamental rights and human rights

The main difference is territorial. Human rights are universal, without any limitation. In contrast, a fundamental right exists within a specific legal system, with the limitations that the law grants. Therefore, the concept of fundamental rights prevails in state laws.

A fundamental right is, above all, a right that the constitution creates. Because of this, we have to consider the preexistence of a right in order to shape a fundamental right.

Human rights have a much broader context than that of fundamental rights. We can see that the distinction between human rights and fundamental rights is important. However, not all human rights have been recognized as fundamental rights.

Thus, we see that in internal State ordinances, and particularly in the constitutional doctrine, there’s a distinction between fundamental rights and human rights. This distinction has, therefore, a number of consequences for the internal regulation of States.