“Rights of the man are separate and independent of the State.” Critically analyze the perspective of Laski. (2026, 20 Marks)
Harold J. Laski held that rights are prior to the State. The priority is one of validity, not history. The state does not create rights; it is judged by whether it secures them. His claim is strongest as a test of legitimacy and weakest as an account of how rights actually exist.
Laski’s Perspective
- Pluralist foundation. In Studies in the Problem of Sovereignty (1917) and Authority in the Modern State (1919), Laski treated the state as one association among many, which must earn allegiance.
- Rights defined. A Grammar of Politics (1925) calls rights those conditions of social life without which no man can seek, in general, to be himself at his best.
- Recognised, not created. The State, briefly, does not create, but recognises, rights. These are not John Locke‘s pre-social natural rights. Outside society there are none, but the state’s claim to obedience derives from securing them. Hence every State is known by the rights that it maintains.
- State distinct from society. Rights are independent of the state, not of society. They are correlative with functions, held so that each person can contribute to the common good. Property too is justified only by socially useful function, and inheritance should be limited.
- Resistance. A citizen’s ultimate allegiance is to the ideals his conscience accepts, so resisting a state that denies rights can become a duty.
Critical Analysis
- Idealists. G. W. F. Hegel (Philosophy of Right, 1821) saw freedom made actual only in the state. T. H. Green held that rights are made by recognition, so they cannot exist apart from an organised society, and Bernard Bosanquet (The Philosophical Theory of the State, 1899) treated the state as society’s real will. Laski replied that this sanctifies whatever government does.
- Legal positivists. For Jeremy Bentham a right is the child of law. For John Austin (The Province of Jurisprudence Determined, 1832) rights are conferred by the sovereign’s command. Laski’s rights would then be mere moral demands.
- Marxists. Karl Marx (On the Jewish Question, 1843) read the rights of man as the rights of egoistic man, a shield for property. Laski later conceded much of this: The State in Theory and Practice (1935) treats the state as the instrument of the owning class, which will not maintain rights that threaten ownership. Rights then depend on class structure.
- Communitarians. Charles Taylor (“Atomism”, 1979) argued that the capacities rights protect develop only within a sustaining society. Laski’s social definition survives this critique better than Locke’s.
- Internal tension. Laski wants rights independent of the state, yet education, work and health can be delivered only by the state, which he called the keystone of the social arch. The vague “best self” test also needs an umpire, usually a state organ.
Indian Illustration
In ADM Jabalpur (1976) the majority held that, with enforcement suspended during the Emergency, detenus had no remedy for their right to life. Justice H. R. Khanna‘s lone dissent held that the right did not depend on the Constitution. K. S. Puttaswamy (2017) vindicated him: neither life nor liberty are bounties conferred by the State. Kesavananda Bharati (1973) had already placed the Constitution’s basic structure beyond Parliament’s amending power. These judgments echo Laski, yet a state organ secured the rights.
Conclusion
Laski is right that rights set the standard by which the state is judged, and wrong to think they can stand apart from it. They are independent of the state in justification, dependent on it for realisation, and conditioned by the distribution of economic power, as Laski himself came to recognise.