Fundamental rights are a generally regarded set of entitlements in the context of a legal system, wherein such system is itself said to be based upon this same set of basic, fundamental, or inalienable entitlements or "rights." Such rights thus belong without presumption or cost of privilege to all human beings under such jurisdiction. The concept of human rights has been promoted as a legal concept in large part owing to the idea that human beings have such "fundamental" rights, such that transcend all jurisdiction, but are typically reinforced in different ways and with different emphasis within different legal systems.
For example, in United States law, "fundamental rights" are a feature of the U.S. Constitution, which, in the language of the U.S. Declaration of Independence, "all [human beings]" are "endowed by their Creator with certain unalienable Rights, among these [being]:"
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Some universally recognized rights as fundamental, i.e., contained in the U.N. Covenant on Civil and Political Rights or the U.N. Covenant on Economic, Social and Cultural Rights, are as follows:
Although many fundamental rights are also more widely considered to be human rights, the classification of a right as fundamental invokes specific legal tests used by courts to determine the carefully constrained conditions under which the United States government and the various state governments may impose limitations on these rights. In such legal contexts, as generally determined whether rights are to be considered fundamental by examining the historical foundations of those rights, and determining whether their protection was part of a longstanding tradition. Other rights may be guaranteed as fundamental by individual states.
In American Constitutional Law, fundamental rights have special significance under the 14th Amendment to the Constitution. The U.S. Supreme Court has held that, via the due process and equal protection clauses of that amendment, some rights are so fundamental that any law restricting such a right must both serve a compelling state purpose and be narrowly tailored to that compelling purpose.
While the recognition of such rights has changed over time, they generally mirror those listed in the Bill of Rights. Although some of the rights enumerated in the Bill of Rights are currently recognized as fundamental, others were included to restrict the government's authority with respect to the privileges granted to American citizens, or to explain more clearly one of the many rights each cCitizen was born with, declared in the preamble of the United States Bill of Rights. There are exceptions to these amendments. For example, states are not required to obey the Fifth Amendment requirement of indictment by grand jury. Many states choose to have preliminary hearings instead of grand juries. While having power to neither grant nor remove an individual right, the Supreme Court has legally recognized some fundamental rights not specifically enumerated in the Constitution, including:
Any restrictions on these rights are evaluated with strict scrutiny. If a right is denied to everyone, it is an issue of substantive due process. If a right is denied to some individuals but not others, it is also an issue of equal protection.
During the Lochner era, the right to freedom of contract was considered to be fundamental, and thus restrictions on that right were subject to strict scrutiny. Following the 1937 Supreme Court decision in West Coast Hotel Co. v. Parrish, though, the right to contract became considerably less important in the context of substantive due process and restrictions on it were evaluated under the rational basis standard.
Europe has no identical doctrine (it would be incompatible with the more restrained role of judicial review in European law.) However, E.U. law recognizes many of the same human rights, and protects them through other means.