Rights shift all the time. What we consider “fundamental rights” are usually not actually that, but rather privileges bestowed by society or a legislature. For example, Canadian prison inmates not that long ago won the “right” to vote in elections while incarcerated, something previously denied them. Two centuries ago many people thought it was their fundamental right to own other people because of their skin colour. I would argue that if it is given or taken away by a legislature it may not be a right, but rather a privilege.
From a further email exchange, September 2, 2015 (reproduced with permission):
This was an idea that has come up during the course of a lecturing in Accounting Theory. There is a Conceptual Framework in financial accounting, which is a codification of generalized first principles with respect to which there is broad historical consensus. I try to explain the Conceptual Framework by analogising with the Charter of Rights or the U.S. Bill of Rights, and religious first principles, such as the Ten Commandments. The idea is that, much like Kuhn argued, for knowledge to advance, we have to have some generally agreed upon baseline, from which to move forward. He then argues that the baseline can entirely change, at least in science. However, we don’t challenge religious first principles; we interpret them. Same with Charter rights (it would seem). Same with, in my view, of a Conceptual Framework in Accounting. The fundamentals don’t suddenly change; it is the interpretation of same. We use these first principles in aid of deductive reasoning, whereby we can determine whether a particular law, or a particular accounting pronouncement, or a particular course of conduct, is right or wrong.
You see, I don’t believe that there is any such thing as a fundamental right. Name me one so-called “right” that the state cannot remove, if it so desires. Including Charter rights. How can something be a right if it can be bestowed or removed, on a whim?
The baseline does change as society changes. Fifty years ago, homosexual activity was illegal and the idea of rights of any kind for gays was a non-starter. So if you must use right/wrong terminology, when were we wrong? Then or now? There are a myriad of similar examples, such as slavery and female suffrage.
Theologically there is the question of whether it is up to us at all to determine right and wrong.
Can you think of any absolute rights that the state cannot abrogate? Sometimes arbitrarily and capriciously, though usually under the guise of legislation and democracy. Parents in Quebec have just been told the state will provide their children with sex education. No opt-out, as in some other jurisdictions. What “rights” are breached there? What Charter “rights” are inviolable under the “Notwithstanding Clause”?
The answer is “none”.