If you want to argue that rights can exist apart from the law, you need to explain in what sense they exist.
In my view, a right requires two things: It needs to be codified - that is described definitively so that it is clear what it is and to whom it applies, and it needs to be enforced. In this definition a right is inseparable from a law.
You appear to think that a right is something beyond this however. That you can have something that is a right but is not a law. From my point of view, I don't see how such a thing meets the two requirements of a right that I described above.
To take an example: You might say that people have a right not to be enslaved. But what about in America in the 18th century? Was this right encoded anywhere? Was there anyone to enforce it? The answers to both are no.
I might in fact find myself saying that 'The people who were slaves had a right not to be slaves', but what I would really mean is that they ought to have had the right. I believe that slavery is morally wrong, but that's really just my opinion. Many people in the past, not necessarily monsters, thought that slavery was perfectly acceptable.
Yes, we can use the term 'right' to describe the moral judgement that I have just described, but we are needlessly introducing an ambiguity. We can talk about 'moral rights' and 'legal rights', but again it is important to mark the distinction so as to avoid confusing others (or indeed ourselves!)
I thought I’d already done that but if it wasn’t clear enough then that’s my failing, not yours, i’ll try again:
Rights exist as the underlying sunstratum of reasons, principles, and rationales which are never “enshrined into law” by codification or binding precedential case-law, but which are still both necessary for making decisions within any system where shared communal activities are structured by norm-thick concepts like “Law.”
In other words, when Judges are faces with a situation in which no direct law applies, and those judges must still render a decision about “what is the law” (all of which is the majority of what any judge is actually, in reality, doing) the Judge can’t simply say “the
Law is x, because I hate the cold weather.” It’s not codified or enshrined anywhere that the judge can’t do this. But it’s understood, generally, that when a judge does this it is not proper in a sense over and above “my individual morals are opposed to this.” People know that this isn’t illegal by any enshrined laws, but they also know this isn’t just a subjective moral issue.
That feeling of being something more than morally wrong but not actually illegal...that’s where rights are.
It’s like the old case of the orphan inheriting his parents estate under ther will as their sole beneficiary after he murdered his parents, in a jurisdiction where there was no law against inheriting money from your parents even if you admittedly just brutally murdered them to get the inheritance.
The Judge recognized that even though this wasn’t illegal to have the murdered inherent, it was something more than just immoral under his personal moral system. It was just, essentially, a violation of a number of non-legal rights (oftentimes expressed in various principles and maxims scattered about as dicta in case-law or treatises) which weren’t ever explicitly made law, but which were protectable rights in any event.
Those are rights. You could call them a communties’ “Super-morals” that don’t need to depend on law at any given moment for their own existence, Recognition, or enforcement.
'Reasons, principles, and rationales', seem to me to be the things at the very foundation of reason. I don't see the need to put 'rights' or anything much else below these.
As I've said, if you want to talk about 'moral rights' apart from 'legal rights', that's fine, as long as the distinction is made. The problem is when the two are confused and people talk about moral rights as if they were legally enforceable, which they are clearly not. Napolitano makes this mistake.
The example you give is no more than that of a public official acting within his remit and not an example of 'natural rights' somehow transcending the law. If the judge was to overextend himself and start being creative with the law beyond his license he would certainly be sanctioned by his superiors.