RIGHTS

 Rights are the sum total of those opportunities which ensure enrichment of human
personality. They are the basic conditions of good life which are recognized by the state.
 Rights are different from demands in the sense, that demands have selfish orientations
whereas rights have societal acceptance. In other words, rights are socially accepted
demands.

Definitions

THEORIST DEFINITION
Laski Rights, in fact, are those conditions of social life without which no
man can seek, in general, to be his best.

T.H. Green A power of acting for one's own end secured to an individual by the
community on the supposition that it contributes to the good of the
community.

Salmond, A legal right... is an interest recognized and protected by the rule of

law an interest the violation of which would be legal wrong... and
respect for which is a legal duty.

Bosanquet A right is a claim recognized by the society and enforced by the

state'.

Barker The external conditions necessary for the greatest possible

development of the capacities of individual personality. These
secured and guaranteed conditions are called by the name rights

 Rights are given on two grounds

(i) Individual personality and the quality of being a condition of its development,
and

(ii) State and its law, and the quality of being secured and guaranteed by the
action of law.

 The concept of rights is essentially about human relationship in the society. Hence
enjoyment of rights involves respectful observance of certain fundamental cannons of
social welfare.

 The rights are never absolute and unlimited and are governed by the social interest.
They impose certain moral responsibilities on every individual.
  Every right carriers a corresponding duty. It is only in a world of duties that rights have
any significance.

 Rights are not a selfish claim. Rights are given equally to all individuals in the society
irrespective of birth, caste, creed, economic status, religion, etc.

 Rights are dynamic in Character and have a tendency to grow.

 With the socio-economic development, new demands of individuals continue to come

into existence and struggle for social recognition. Such demands which are recognized
by the state through its law become rights.

 The great majority of rights are limited in time and space because they have a reality
only in the context of a particular human society that did not exist in the past and may
not exist in future.

 The concept of rights emerged with the right of modern state and out of the criticism of
the old social and political order. Historically, the demand for individual rights was made
by the rising commercial/middle class which was the product of industrial revolution.

 Rights became the accepted ideology of American and French revolutionaries and were
expressed in the Declaration of Independence and the constitutional Bill of Rights in
America and the Declaration of the Rights of Man in France.

 Rights got established universally only in the modern times. The renaissance of the
reform movement played important role in this.
 The 17th & 18th centuries are known as “ Centuries of Rights”

Glorious Revolution -1688

American Revolution - 1776
French Revolution - 1786
 In the 20th Century the Universal Declaration of Human Rights, 1948, has created way
for the expansion of the democratic form of life.

Theories of Rights
Theory of Natural Rights:-
 The first theory which emerged as a justification of rights is known as theory of natural
rights. Since 17th and 18th centuries, there has been a powerful opinion in the West
attached to the idea that man possess certain rights 'by nature', irrespective of any
 particular social, legal or political institutions and that these rights can be demonstrated
by reason.

 Rights, according to this theory, were attributed to the individual and are taken as being
intrinsic to the self.

 This theory treats individuals as self-evident truth & has been supported on two grounds:

(a) CONTRACTUAL :- Hobbes, Locke, Rousseau

(b) TELEOLOGICAL: - Green, Thomas Paine, Spencer.
 Theory of Natural rights was developed to oppose, divine absolutism as well as the
decaying feudal order.
 Though the theory supports individualism and is associated with Hobbies, Locke &
Rousseau still the idea of “Centrality of man” can also he seen in the writings of Pre-
Greek philosophers such as Detroit, Helvetius.
 The idea of a contract was first provided by Hooker, Pufendorf and Grotius in the
modern times but its most systematic justification came from Hobbes Locke and
Rousseau.
 Natural rights were derived from natural law and were propagated by the social contract
writers like Hobbes, Locke and Rousseau. They assumed that man had certain natural
rights before the origin of the state and he surrendered some of them to a superior
authority i.e. civil society, in order to safeguard the rest of them.
 It was maintained that the individual cannot give up these rights to the state. They are
inalienable, immutable, and sacred from the day of his birth and are non-transferable
throughout his life time.
 Natural Rights theory believes that rights are both pre-social and pre-political, and an
end in itself. It is the preservation of those rights that creates the state. In other words,
not only these rights create the state but also limit it.
 Hobbes took the Right to Life as the natural Right whereas Locke considered right to life,
liberty and property as the natural rights. Rousseau deemed liberty and equality as the
gifts of nature.
 The Natural Rights became the basis of establishing a constitutional & democratic
state.
 The First reflection of these rights can be seem in the U.S. Constitution which was
drafted by Jefferson, a friend of Thomas Prime, who was inspired by Montesquieu who
was inspired in turn by Locke.
  The Natural Rights finally settled or were accepted in the French Revolution and Mary
Wollstonecraft used it to justify the equal rights of women.
 It also became the basis for the demand of political Rights.
 In the US the Blacks First got the right to vote in the 1870 through 15 th amendment
of Constitution, Women similarly in 1920s got the right to vote through 19 th
Amendment
Criticism
 Natural Rights Theory has been criticized by Edmond Burke, Henry Maine, Bentham,
Hegel, David Hume, and in the contemporary times by communitarian writers such
as Charles Taylor, Alasdair Macintyre, and Joseph Raz.
 Edmund Burke attacked the whole idea of speculative rights and declared that the
basis of rights can only be customs and sentiments of the society
 Burke has called Natural Rights as metaphysical abstractions
 David Hume “ Rights arise out of convention & common experience
 Bentham also rejected the whole idea of rights as prior to and against the state. Rights
could only be conferred by law.
 Bentham: Natural Rights are nonsense upon stilts.”
 Green: Every right must be justified in terms of ends which the community considers
good and that which cannot be attained without rights.
 Both Green and Laski related rights with useful functions in the society. The theory of
natural rights was found imperfect in so far as it did not relate rights to the idea of social
good or socially useful functions.
 Macintyre, in Particular, is critical of Universal Declaration of Human Rights.
 Macintyre: to believe in Natural Rights is like believing in witches & unicorns.
LEGAL THEORY OF RIGHTS
 The Legal Theory of Rights is critical of the Natural Rights theory and maintains that
right are not natural but the creation of the state. Only that which the law gives is right.

 Rights are not absolute or inherent in man, they are artificial in the sense that they
become rights only when they are determined and secured by the state.

 Traces of this theory can be seen in the writings of Hobbes who held that the right of
every individual is that of self-preservation and this right could best be preserved by the
sate.
  But the theory was developed by legal philosophers like Bentham, Austin and other
writers of the analytical school of jurisprudence.

 Bentham rejected the theory of natural rights which had been advanced by the early
liberals and had been popular with the American and French revolutionaries. He
described the theory as metaphysical, as a 'hodge-podge' of confusion and
absurdity.

 Bentham justified its rejection and held that all rights of man are derived from law which
itself is based upon utility.

 Bentham, “Rights, properly so called, are the creatures of law.” Real law gives real
rights”

 The legal bases of right implies three things:

1. The state defines and lays down a bill of rights. Rights are not prior to the state
but state is the source of rights;

2. The state lays down a legal framework which guarantees rights. It is the state
which enforces the enjoyment of rights:

3. As the law creates and sustains rights, so whenever the contents of the law
changes, the substance of rights also changes.

 The rights granted by the state are called positive rights.

 In the 20th cent. Legal Rights have been supported by Ritchie & Salmond.
Criticism
 The theory has been criticized by writers such as Spencer Marx as well as
Bosnquet.
 For Spencer, state doesn’t create rights, but exists to maintain them.
 For Bosanquet, rights have moral reference.
 The legal theory did not take into consideration the rights of multiple associations in
the society. For example, as Laski said, men enjoy rights not merely as members of
the state but also as members of the society. He criticized the legal bases of rights
on the ground that to limit the rights to a single source, i.e., the state is 'to destroy
the personality of the individual and not to preserve it.
 The liberal writers like Green and Laski recognized the need to the state is limited
and conditional. It is obedience to right and not might, to justice and not to authority.
 The material source of rights is the community's sense of justice and not the law.
Law is nothing but the concretization of the feeling of the community
Moral/Idealist/ Personality Theory of Rights
 According to this theory, rights derive their justification from a code of morality shared by
the members of a community and are enforced by the conscience of the individual.

 The moral theory of rights is associated with idealism; thinkers like T.H. Green merged
it with liberalism. The main supporters of this theory were Rousseau in France, Kant
and Hegel in Germany, and Green and Bosanquet in England.

 The moral theory associates rights with the achievement of moral freedom of man as
member of the society. According to this theory, every right is derived from one basic
right - right to personality. Whether it is right to life, liberty, property, education or health,
they are all rooted in and are governed are powers which an individual claims from the
society on a moral plane and are recognized and enforced by the state through its law.

 Rights are thus the external conditions, recognized by the society and enforced by the
state, for the moral uplift of man.

 Green speaks of rights as the 'powers necessary to the fulfillment of man's vocation
as a moral being. They are rights because there is a 'common consciousness' that
an individual ought to have such rights. They are not natural but are ideals.

 Commenting on Green’s approach towards rights, Barker believes that for Green
,”Human consciousness postulates liberty, liberty creates conditions, conditions
are rights, rights create the state”
 The moral rights are also contextual rather than universal because they are limited to
people who share a common code of morality. Though it is argued that all codes of
morality have certain basic beliefs in common but this is disputable and difficult to
establish.

 It believes that there is no differentiation between individual and the general interest, and
hence the rights are granted by the state & serve the moral purpose in improving human
personality.
 For Rousseau “There’s nothing called a personal right”. All the rights that men have are
in collectivity.
 For the importance of collectivity, and ignoring individuality Rousseau has been
described by Talmon as “ Father of totalitarianism”
  For Kant rights mean that individuals must be seen as an end. He has described this as
“categorical imperatives” of life.

Historical Theory of Rights

 As a reaction to the rationalism of the eighteenth century, there arose a historical school
of law, philosophy and jurisprudence in nineteenth century. It was a reaction against (i)
the paper constitution making, (ii) confident disregard of traditional political institutions
and condition of time and place which characterized year of French revolution, and (iii)
the belief that the power of reason can work miracles in legislation.

 This historical school was represented by Savigny and Puchta in Germany, Sir Henry
Maine and Edmund Burke in England and James Carter in the USA. All of them
maintained that the character of state and law is historical and so also the character of
rights.

 Also advocated by Henry Maine, and Oakeshotte

 According to this school, law, sate and rights are neither based upon the arbitrary
creation of human will nor a product of nature but a product of history. They represent
the manifestation of the particular genius of particular national consciousness.

 Making a distinction between abstract rights and historically-embedded rights, Burke

observed that the French revolution was based on the abstract rights of liberty, equality
and fraternity applicable to all while the English revolution of 1688 was based upon the
customary rights of Englishmen - the rights which Englishmen had been enjoying from
the early days. Since the rights of man declared by the French Revolution were not a
part of the common consciousness of the French people, even after executing the king
and the declaration of rights, they could not get them and the revolution turned into a
dictatorship.

 Rights are the crystallization of custom,

 According to Ritchie, 'those rights which people think they ought to have are just those
rights which they have been accustomed to have or which they have a tradition of having
once possessed. Custom is the primitive law'.

Criticism
 The main defect of the theory was that it did not differentiate between a right and a
wrong custom.
Social Welfare Theory of Rights

 In the twentieth century, all basis or rights whether they were natural, legal, ideal or
historical merged into a broad theory, known as 'social welfare'. The concept of social
welfare was recognized by positive liberal writers in the late nineteenth and early
twentieth century like T.H. Green, G.D.H. Cole, L.T. Hobhouse, Harold Laski, Ernest
Barker etc.

 According to this theory, a law, custom, natural rights etc. should all yield to what is
socially useful or socially desirable.

 According to Hobhouse, 'Genuine rights are conditions of social welfare and the
various rights own their validity to the functions they perform in the harmonious
development of society.'

 The best explanation of this theory has been given by Harold Laski in his book "A
Grammer of Politics". According to him, rights are the 'conditions of social life
without which no man can seek to be himself at his best'. The state exists to make
possible that achievement and it is only by maintaining rights that such an end can be
achieved.

 Laski believes that

1. The question of rights emerges only in the society. It is a claim of the individual,
Hence rights are related to common ends. The state by guaranteeing these
claims helps the individual to attaining his own well-being as well as the well-
being of others. Individual good is an integral part of social good.

2. Rights are correlative with functions. The enjoyment of rights can be justified by
the functions an individual performs in terms of his contributions to the social
end.

3. Rights are a claim upon the state and the state must provide conditions for the
realization of rights. In this context, the state can put certain limitations on the
rights in the interests of social welfare, but if these restrictions become
unreasonable, it losses its moral authority and the individual has not only a
right but a duty to resist the state.

4. Being social rights to be guaranteed by the state such as right to work,

adequate wages, reasonable hours of work, participation in the industry,
education and limited right to property. And lastly, to realize any system of
 rights, the authority of the state must be democratic, limited, and decentralized
so that there is proper communication between the state and the citizen.

Recent Development in Liberal-Individualistic Theory of Rights

 For the last thirty years, the liberal-individualistic theory of rights has come to be
dominated by the views of John Rawls and Robert Nozic. Both of them have achieved
much prominence in the liberal tradition and have been instrumental in influencing other
writers like Dworkin, Galstone, Ackerman, Barry to propound alternative theories of
rights.

 They represent two dominant socio-alternative theories of rights. While Nozic

represents the classical-liberal view of free market, from trade capitalism and
minimal state, Rawls represents the Keynesian tradition to liberal egalitarianism.
He appeals to those who believe in the desirability, efficiency and future of capitalist
market but that the later may not function well and generate serious inequalities. He
wants to find efficient ways to address to those inadequacies, without altering the
essential nature of the system.

 According to Nozic, the theory of rights is derived from the principle of natural rights of
'self-ownership' which means strength people as they are an end in themselves. 'The
individuals have rights and there is no things person or groups may do to them. Society
must respect these rights because individuals are ends and not means. Rights affirm the
separate existence of man, and taken seriously, they mean that the individual are not the
resources of some other persons. Respect for rights is respecting people's claim to
be equal.

 John Rawls uses the words 'rights' and 'justice' interchangeably. According to him, an
account of rights must be embedded in justice. Rights belong to all disinterested political
individuals beyond the veil of ignorance. But they had no natural rights except those
which they chose unanimously in their original position. They were accepted because of
the considered judgment of the people. The rights which people accepted in their original
position included an equal right to the most extensive liberty compatible with a similar
liberty for others; and arrangement of social and economic inequalities in such as way
that they (i) benefits the greatest to the least advantaged, and (ii) attached to positions
and offices open to all under conditions of fair equality of opportunity. By basic liberties,
he means the standard civil and political right recognized by the liberal democracies
such as right to vote, to run for offices, due process of law, free speech etc.
  Both Rawls and Nozic reject the utilatirian theory of rights and believe that individual is
an end in himself. However whereas for Nozic, the most important right is the right over
oneself i.e. The right to self-ownership, for Rawls, it is the right to a certain share of
society's resources.

 Yet another theory of rights has been advanced by Ronald Dworkin in his book "Taking
Rights Seriously (1978)". He has tried to build a new theory based on the primacy of
moral rights. Dworkin identifies only two moral rights of the citizen to be treated as
natural or inalienable: (i) the right of the citizen to be treated equality, and (ii) right to
have respect for human dignity. The theory is not based upon history or philosophy or
tradition but on a speculative claim based upon reason.

 Dworkin's theory is different from other liberal writers because of his emphasis that there
can be no general right of liberty. The idea of a right to liberty is a mis-conceived concept
that does disservice to political thought.'

Marxist Views on Rights

 Marx was primarily interested in radical criticism of the capitalist society and never
attempted seriously any affirmative theory of rights. Hence, it is given a goodbye in the
writings of Marx. However, his views on rights expose the hollowness of the bourgeois
structure of rights.

Critique of the Bourgeois Concept of Rights

 In his early writings, Marx analyzed the character of rights in the bourgeois state. His
analysis led to the conclusion that the economic inequalities lead to political inequalities.
As result the workers will never become a part of the government in spite of their being
in majority and their rights will remain hollow.

 In an essay, The Jewish Question (1843), talking about the human rights included in
the American and French constitutions, he wrote that these human rights were partly
political rights which could only be exercised in the community along with other men.
Their content is formed by participation in the common essence. The political essence,
he is essence of the state. They fall under the category of 'political freedom' and 'civil
liberties'. There are certain other human rights termed as 'rights of man' as distinct from
the rights of the citizens. Among them are freedoms of conscience or freedom to choose
religion. In the bourgeois society, the rights of man are differentiated from the rights of
 the citizen. This, according to Marx, can be explained from the relationship of the
political state to the civil society, and from the nature of political emancipation.

 To Marx, it seemed Paradoxical that liberalism which began to free and tear down all
barriers between different sections of people should proclaims the justification of man
who is egoistic and separate. Man as a communal being is reduced to a partial being. In
short, it is not man as a citizen but man as a bourgeois man that is called a true man.

In short, in its criticism of the bourgeois concepts of rights, Marxism claimed that:

(i) The human rights are abstract and formal unless certain institutional changes were
introduced to make the expression of those rights possible. For example, right to life
means right to the means of subsistence on which life depends. Marx was keenly
aware that property as a social relation is not merely a form of power over things but
also a powers over men. Therefore, ownership of the means of production by whose
use men must live, an ownership which legally means the right to exclude others from
the use of things owned, carries with it real power over the lives of anyone who must
work in order to live.

(ii) Although equality of rights is a necessary condition for social justice, by itself equality is
not sufficient. Whereas the prophets of Enlightenment declared that all men are or
should be equal before law, the nub of the Marxist position is that where economic
disparities are substantial, the law cannot and does not protect or punish equality. The
commitment to equality of rights in a class-divided society carries with it a mandate for
continuous social reconstruction. When Marx said that 'every right is in general a right
of inequality in its content', he is not denying the validity of the principle equal right.

(iii) Every right is affected by the conditions of its operation, whether it is the right to a fair
trial, or to an adequate education or to freedom of speech or press. Also rights are
never higher than the economic structure and cultural development of society but are
conditioned by it.

(iv) In the struggle for an economically classless society which presumably would provide
social and economic democracy, compliance with the form of political democracy was
deemed unnecessary. Rights were formal and, therefore, of inconsequential
importance and hence if they interfered with the concrete social progress, they could
be ignored or violated.

Human Rights
  The term 'Human rights' refers to the concept that every members of the human race
has a set of basic claims simply by virtue of his humanness. They are rights claimed in
respect of all human beings. They are said to be universal rather than national and are
different from legal rights.

 They are claims held to belong to everyone regardless of any real provisions that may or
may not exist for him in a particular state, simply because a human being should not be
forbidden from certain things by any government.

 Philosophically, they derive their origin from the theory of natural rights developed in the
seventeenth century but today, we call them human rights because rights are no longer
derived from the operations of natural reasons but from what is called 'human'. It is
derived, for example, from the fact that a person who is malnourished, tortured, wrongly
imprisoned, illiterate and lacking in regular paid holidays is not living in a manner
appropriate to a human being.

 According to Macfarlane, human rights are 'those moral rights which are owned to
each man and women solely by reason of being a human being'. They are distinguished
from other rights by five special characteristics, viz; Universality, Individuality,
Paramountcy, Practicability, and Enforceability.

 According to Maurice Crantson, human rights represent 'certain deeds which should
never be done, certain freedoms which should never be invaded, something which are
supremely sacred.

 Dworkin writes, human rights are those rights which the state should not override even
in the name of public interest and which can be exercised in spite of the law of the
country

In short, by human rights is meant four things:

(i) Rights those are inherent in, and integral to every human being by the fact of his birth.

(ii) Rights are basic for human life, and its development,

(iii) Rights that presume the existence of those social conditions in which they can be
exercised and

(iv) Rights which every civilized state ought to incorporate in its constitution and laws as
the recognition of basic human needs and demands.