Two examples: In a criminal trial, you have a right to a defense attorney, but you can waive this right.

In labor law, you have a number of labor related rights that, if you could voluntarily waive them, would effectively render the law void. If you could waive your right to a minimum wage, companies could simply offer a wage waiver with every employment application. I strongly suspect this would be illegal.

Yet, it seems like your right to an attorney is more fundamental and important than your right to agree to be paid a certain amount for certain work.

Is there any reason why some rights could or could not be waived?

1 Answer 1


One doesn't normally speak of "rights" in discussions of minimum wage. Instead it is an obligation on the company to pay, not a right of the worker. The worker cannot waive the right, since that would mean breaking the law.

If there is an obligation created by law then an individual may be unable to release someone from that obligation.

Other rights and obligations are written in such a way that they may be waived. For example "No soldier...shall be quartered...without the consent of the owner..." The ability of a person to waive their right not to quarter soldiers is explict.

So certain rights can be waived because of the precise wording of the laws that create those right. The question of whether a rational person could ever want to waive a right is central to whether a right can be waived.

A person may rationally choose to represent themselves. A person may rationally choose to quarter a soldier in their house. A person may rationally choose not to own a gun. Thus the rights to a lawyer, fifth amendment rights and the second amendment rights can rationally be waived.

On the other hand a person would not rationally accept less money for work than is offered. No rational person would submit to cruel or unusual punishment, thus one cannot choose to waive these rights

  • This has more to do with the precise wording of the law and the politics in place when the legislation was enacted, and less to do with logic than the answer suggests. There are non-waivable rights that many people might rationally waive but don't because the law says that they can't, and other rights that are waived "irrationally" because people have no other practical choice.
    – ohwilleke
    Mar 13, 2018 at 0:17

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