• The concept of rights is, politically less contentious than equality or social justice. However, there is far less agreement about the grounds on which these rights are based, who should possess them, and which ones they should have.
  • The concept of rights or ‘human rights’, originates from the voice of protest oppression perpetrated by the dominant groups in society. Rights are meant to safeguard the individual from the irresponsible and arbitrary use of power by the ruling class.

Concept of Rights

  • Laski defines:
    • Rights as the conditions of social life without which no one can seek, in general, to be at his best.
    • As the definition suggests,
      1. they are the conditions of social life and thus there cannot be any rights in the state of nature, thus, nobody can seek to be at his best in the state of nature.
      2. Laski holds that rights are not concessions granted by the state. For men, to be him, to own his own personality, to develop his own character requires certain rights which must be recognized by the society or state. On the contrary, they are superior to the state, because they provide for a standard to judge the state itself. For since the State exists to make possible that achievement, it is only by maintaining rights that its end may be secured.
      3. Rights, therefore, are prior to the State in the sense that, recognized or not, they are that from which state’s validity is derived.
  • Thus, rights are those claims which must be recognized by the society or state and the recognition of those rights and protection of rights are considered as essential for the individuals to develop fully, to be at himself or to be the best version of himself. This discourse on rights is fundamental aspect of modern political philosophy.
  • The conception of social life essentially entails a relationship between Rights and Duties. When rights are erected on moral foundations they are essentially accompanied by duties. So, rights are meaningless, if it does not invoke obligations or duties on the part of others.
  • Person’s rights or claims or entitlements, necessarily, require other individuals or groups, society, or the state to have certain obligations towards those individuals and similarly, same individual must also, recognize the rights of others. Therefore, other rights become one’s own obligation, to recognize or extend those rights to other individuals also. So,one person’s rights or claims or entitlements are necessarily, another person’s obligations. So, rights and duty must go hand in hand, but it is not equal to each other.
  • The obligation is what you are obliged to do for others, for the society, state, and other members in society. But rights are your due, your own entitlements or claims against other members or society or the state. So, rights are those claims which individuals make against, the state or society which needs to be secured by the law or constitution. Thus, there are broadly, speaking two kinds of rights. They are- legal and moral rights.
  • Laski carefully points to their correlation.
    • “The possession of rights . . . does not mean the possession of claims that are empty of all duties . . . Our rights are not independent of society, but inherent in it… To provide for me the conditions which enable me to be my best self is to oblige me, at the same time, to seek to be my best self. To protect me against attack from others is to imply that I myself will desist from attacking others. “
    • The concept of rights postulates that the state as well as the individual shall pursue the ideal objects of society. Accordingly, the duty of the individual is coextensive with the duty of the state. If the state fails in its duty, it is the duty of the individual to resist the state.
    • Moreover, as the rights of man are subservient to the common good, it is his duty to contribute to the common good in exercise of his rights. A shared conception of a collective end — a common good — is the basis of society’s existence, and is also the basis of the individual’s existence as a moral agent. Hence, achieving the moral end of man is dependent on the recognition of oneself as a purposeful agent who can only progress within a society of other purposeful moral agents. This echoes the Kantian idea that a fundamental element of rights is adherence to the categorical imperative.
  • Similarly, T H Green argues that we are entitled to rights because this enables us to fulfil our moral agency, and thus, to contribute to the common good. The purpose of rights should not be seen as a protection of the individual from social authorities, because ‘a right against society, as such, is an impossibility’. Green says “the human consciousness postulates liberty’, Liberty involves rights; rights demand the state”.
  • Thus rights become rights only when there is corresponding duty attached to it.The correlation between rights and duties also determine whether Rights are claims or a mere entitlements. The claim versus entitlement debate is reflective of age old debate on legal versus moral right.
  • Rights, are said to have no meaning without duties and one person’s rights necessarily, involves another person’s duties or vice versa. So, the rights and duties must go hand in hand.
  • The idea is the very formation of modern state which is based on certain assumptions and one of the assumptions for the formation of the state is that it recognizes the individual as a right bearing citizen or a member. Therefore, state has certain obligations to recognize certain rights of individuals and also, it must protect those rights.

Some of the basic features of rights are:

  • Rights are claims of individuals and it exists only, in a society, when others exist to recognize those rights, and these are the products of social living.
  • Rights are recognized by the society as common claims of all the members of that society.
  • So, rights are rational and reasonable moral claims which individuals seek to get recognized by the state and other members of the society.
  • Rights are equally, available to every member of the community and not to a particular member or a group of individuals or privileged members in the society. Rights if, understood as claims, recognized by the society, then those rights are available to every member of society and not to a selected few. However, if there are some differences or some kinds of preferential treatment given to certain groups or individuals from certain groups, then those differences or differential treatment must be duly, justified.
  • The scope or set of rights constantly, keeps expanding and changing with the passage of time and new rights are included, such as in India, we have a set of fundamental rights and now, the right to education which was earlier not part of our fundamental rights is now, added to it and regarded as the fundamental right.
  • Rights are not absolute. There are always, some reasonable restrictions on the right which are deemed essential for maintaining public health, security order and morality.
  • Rights are inseparably, related to duties or obligations, and there is a close relationship between the two. There is a kind of intimate connection between rights and obligation, although, both are not same.

Claims versus Entitlement:

  • The claims and entitlements enable the individuals to make certain choice, to do something or to get something done or to not to do something. So, the rights have some elements of choice, some elements of voluntarily action on the part of the individuals, it enables and gives the individual his or her due in the society or being a member of that society.
  • However, all the claims or entitlements that individual may seek from the society, or the state may not be necessarily, regarded as rights. For the claims and entitlements to be regarded as rights, the society or state must recognize them. In other words, rights are recognized as claims.
    • Claims are strong rights in the sense because there is corresponding duty or responsibility on someone to give it to the possessor of the right. Claims are rights one must have.
    • Entitlements on the other hand are weak rights. One may deserve it but there is no corresponding obligation/duty on anyone to give it to the possessor of the entitlement.
      • For example right to food was a mere entitlement earlier but post the enactment of food security bill, it is a claim because there is a duty cast upon the state to provide certain minimum amount of food to the claimants.
  • Similarly fundamental rights are claims and Human rights are entitlements.

Legal and moral rights:

  • Legal rights are rights which are enshrined in law and are therefore enforceable through the courts. They have been described as ‘positive’ rights, in that they are enjoyed or upheld regardless of their moral content. For example, Fundamental rights.
  • Legal rights extend over a broad range of legal relationships. A classic attempt to categorize such rights was undertaken by Wesley Honfeld in Fundamental Legal Conceptions (1923). Honfeld identified four types of legal right.
    • First, there are privileges or liberty-rights. These allow a person to do something for instance, to use the public highway or not to do something or perform some obligations.
    • Second, there are claim-rights, based on which another person owes another a corresponding duty – for example, the right of one person not to be assaulted by another.
    • Third, there are legal powers. These are best thought of as legal abilities, empowering someone to do something – for example, the right to get married or the right to vote.
    • Fourth, there are immunities, according to which one person can avoid being subject to the power of another – for instance, the right of young, elderly, and disabled people not to be drafted into the army.
  • A different range of rights, however, may have no legal substance but only exist as moral claims. The simplest example of this is a promise. A promise, freely and rationally made, invests one person with a moral obligation to fulfil its terms, and so grants the other party the right that it should be fulfilled. Unless the promise takes the form of a legally binding contract, it is enforced by moral considerations alone. It is, quite simply, the fact that it is freely made that creates the expectation that a promise will be, and should be, fulfilled.
  • In most cases, however, moral rights are based, rather, on their content. In other words, moral rights are more commonly ‘ideal’ rights, which bestow on a person a benefit that they need or deserve. Moral rights therefore reflect what a person should have, from the perspective of a particular ethical or religious system.
  • The danger with moral rights is, however, that they may become impossibly vague and degenerate into little more than an expression of what is morally desirable.

Theories of Rights

  • Various theories regarding origin and justification of rights can be classified as:
    1. Natural theory
    2. Legal theory
    3. Conservative theory
    4. Libertarian theory
    5. Communitarian theory
    6. Multicultural theory.

Natural Theory of Rights

  • This is the oldest theory of rights and has two traditions in it.
    • The first tradition belongs to the social contract propounded by John Locke .
    • The second tradition is called as the teleological and its main proponent was Thomas Paine.

Social contract tradition:

  • Essence of theory of natural rights is to limit the power of the state. The concept of natural right is of modern times. We saw the ideas in American war of independence and the French revolution.
  • The theory of natural rights was in contradiction to the theory of divine rights of medieval times.
    • According to it King had the absolute authority and people had no rights against the king or absolute powers of state.
    • So the natural rights tradition as propounded by Locke talks about the natural rights of man in which state has no absolute rights.
    • Government is a trust and people are trustees. Government can’t go against the wishes of the people. If it does so, people have a right to revolt.
    • Locke held that right to life, liberty and property are the natural rights. Thus, Lockean conception of state is of minimal state which must protect or recognize individual rights and its only, task is to protect those rights and such rights are right to life, property and liberty.
  • In the social contract tradition, origin of rights is in intuition or reason rather than in any institution or state.
    • The proponents of these rights hold that people inherit certain rights from the natural law and before they come to live in the society, whether the civil or political society or state, they used to live in the ‘state of nature’.
    • In this ‘state of nature’, they enjoyed certain natural rights in the words of Locke, like right to life, right to liberty and property. Therefore, they argued that society and state must recognize these rights which are not something, that is, recognized by the society and state. But it is something, which individuals enjoyed in his ‘state of nature’.
  • Thus, it was Locke who tried to demonstrate how, natural rights, that is rights derived from natural law i.e. reason could form the basis of the principles of governance. However, many scholars and theorists, have criticized this natural right as being imaginary or excessively, individualistic. Because it focuses on the individual as a self- defining autonomous subject and ‘a historical’. There is no historical evidence to prove that there was a ‘state of nature’.

Teleological tradition:

  • Teleology means the doctrine of final causes. It signifies the view that any developments are due to the purpose or design that is served by them. The teleological view of rights, therefore, seeks to relate the rights of man with the purpose of human life. These rights do not depend on any institutional arrangements, but ensue from the very nature of man and serve the purpose of his life. These are, therefore, natural rights. It is a commonsense based approach.
  • They are a critic of social contract tradition. Paine calls it illogical. Paine rejected the doctrine of the social contract as it was ‘eternally binding, and hence a clog on the wheel of progress’.
    • He asks that how can we bind next generation by the contract of a previous generation. He insisted that every generation should be free to think and act for itself. But rights to ‘liberty, property, security and resistance of oppression’, which are the proud possessions of man in civil society, derive their sanction from the natural rights’-existing in the individual’.
  • Thus teleological tradition gives the end of men i.e objective or purpose of man. It is to live with dignity and therefore some rights are essential to live with human dignity. Natural rights are claimed to be eternal and immutable. But, in actual practice, they are capable of immense variations. In short, the concept of natural rights is a subjective concept. Their character depends on the views and values of the class which grasps, interprets, and articulates them.

Theory of Legal Rights

  • It is associated with the ideas of Hobbes and Bentham. They are utilitarian’s and thus prefer order over liberty. The theory of legal rights holds that all rights of man depend on the state for their existence. There can be no right in the proper sense of the term unless it is so recognized by the state. According to this theory,
    • no rights are absolute,
    • nor are any rights inherent in man as such.
      • So state is the source of rights.
  • Natural rights are not rights but they are power, as in the absence of state in the state of nature, might become right. Thus, only when state comes into existence, people can enjoy rights.
  • This implies:
    1. in the first place, that there are no rights prior to the state, because they come into existence with the state itself.
    2. secondly, it is the state which declares the law and thereby guarantees and enforces rights—no rights can exist beyond the legal framework provided by the state; and
    3. finally, as the law may change from time to time, the substance of rights also changes there with—there can be no ‘fixed’ rights in any society, not to speak of eternal or universal rights.
  • Bentham rejects the doctrine of natural rights as unreal and ill-founded. He calls natural rights as nonsense upon stilts. Entire natural rights theory has no ground and only source of rights is state.
    • According to Bentham Natural rights are terroristic language. It creates terror because if we demand rights from state which it is unable to provide, it will result into anarchy and chaos.
    • Bentham condemns natural rights as an invention of fanatics, which are dogmatic and unintelligible, devoid of reasoning. He calls them as chimeras.
  • It is thus evident that the theory of legal rights was advanced with a focus on political reality and to repudiate the imaginative character of natural rights theory.

Conservative Theory of Rights

  • It holds that rights are the product of a long historical process. They differ from state to state and from time to time because of the different levels of historical development of society. Rights grow out of custom which stabilized through usage in several generations.
  • This theory originated in eighteenth century conservative political thought. Its upholders defended evolutionary change and deprecated revolution. At best, they supported a revolution inspired by the established order of society.
    • Edmund Burke ,the greatest champion of historical theory of rights, criticized the French Revolution (1789) for it was provoked by a conception of abstract rights of man—liberty, equality, fraternity.
    • On the contrary, he glorified the English Revolution (1688) which sought to reassert the customary rights that Englishmen had enjoyed from very early days, and which had found expression in such documents as the Magna Carta (1215), the Petition of Right (1628), etc.
  • Thus, for them, customs and traditions are the source of rights and not nature and law. Rights rooted in customs are reality and the rest of the rights are an illusion. The state has only to recognize those rights of men which have already come into vogue through long-standing usage and custom.

Liberation Theory of Rights

  • Presently this theory comes closest to natural rights theory and has given the strongest justification of absolute right to property. Libertarian theory of rights which talks about individuals, his welfare and happiness which must be given primacy over the welfare and happiness of collectives or communities.
    • So, the libertarian conception gives primacy to individuals, his welfare and happiness. An individual, here, is understood as a self-defining, autonomous individual who is independent and above the society or collectivity.
    • They argue about giving primacy to the welfare and happiness of individuals over the collectives or communities. This argument is in response to the egalitarianism, multi- culturalism or the communitarian arguments about equality, rights, and justice.
  • The prominent champion of the libertarian theory of rights in contemporary times is Robert Nozick. His book, Anarchy State and Utopia was published after John Rawls, Theory of Justice.
    • This book is a libertarian reply to the egalitarian theory of Rawls. Rawls’s conception of justice is responded to by this text of Robert Nozick called Anarchy State and Utopia, where he defended the right to property and in no circumstances, if property is acquired justly, it should be influenced upon or taken away for the re-distributional purposes.
    • Rawls in this book, tried to reconcile the concerns of equality and community with the demands and concerns of liberty, and development of the individuals.
  • In response, to Rawls theory, Nozick argued that everyone has certain rights, such as property rights which are absolute.
    • He argued against the infringement of the right to property of individuals in the name of collective goods or welfare. His conception of justice is also called the ‘entitlement theory of justice’.
    • So, if individuals, acquire his or her property or if such acquiring is based on just principle or through just means, then, it gives the individual certain entitlements which cannot be taken away in the name of larger good or collective good. He gives two ways, in which wealth can be legitimately, or justly, acquired by the individuals.
  • First, he argued that a person who acquires the property in accordance, with the principle of justice at that point, is entitled to that property.
    • So, the individual’s entitlement to property is based on this principle, whether he or she has acquired that property through legitimate means, or not, and if such, acquiring is based on legitimate or just means, then he or she is entitled to that property.
  • The second principle of acquiring property is that if, a person has acquired that property through legitimate transfer from someone who is the rightful owner of that property.
    • So, if someone, who is the rightful owner of property and if he or she, transfers that property to other individuals, then the other individual is entitled to that property. Because it is, transferred to him or her, by someone, who is the rightful owner of that property.
    • These are the two basic criteria of acquiring property which Nozick talks about and any other criteria by which property is acquired, he considered that as unjust.
  • So, Nozick, wanted to give primacy to the liberty and individual autonomy or freedom without any consideration to the re-distributional aspect or equalizing factor that is, argued by many egalitarian theorists and scholars. He wanted individuals to be given maximum liberty, regardless of its consequences on the collective welfare or economic implications of such liberty.

Dworkin: Taking Rights Seriously

  • Utilitarian’s argue that there is sufficient grounds to curtail or limit the rights of individuals, if such limitations or curtailment is in the benefit of larger good or common good of the society or humanity.
    • According to utilitarianism fundamental basis to determine the public policy is utility. What government should do or not do is to be determined by the principle of utility.
    • It is determined by greatest happiness of the greatest numbers. This is a majoritarian approach, and it will ignore the interest of a few who are non-dominant.
  • Dworkin gives his theory of rights in criticism to utilitarianism. Ronald Dworkin argued about the significance or inalienability of rights in the sense, he wants those scholars to take rights seriously, as the name suggests.
    • So, a right is not something, which can be compromised or tradeoff between other kinds of goods or goods for the humanity. But rights are something which is considered inalienable and very essential for the growth of individuals. It cannot be traded off in some other goods or moral political values.
  • In this essay, ‘Taking Rights Seriously’, philosopher and constitutional lawyer Ronald Dworkin, argued, ‘rights are trumps. By this phrase ‘rights are trumps’, he meant that the basic rights must take precedence over other norms, including, the interests or welfare of the whole community or society.
    • So, there are certain fundamental rights which must be given primacy, to any other goods that may be society collectively is desirable.
    • In other words, the rights are the possessions of individuals which cannot be taken away or which cannot be traded off with some other goods.
    • Rights, are therefore, individual possessions which cannot be violated simply, because such violations benefit other individuals or society.
  • In Ronald Dworkin’s conception of rights is something, which is the possession of individual which cannot be violated, even if, such violation is in the interest of other individuals or groups of individuals or even for the good of society or community.
    • In that sense, his conception of rights is considered as inevitable or essential possession of individuals which must not be taken away or infringed upon for the sake of other goods or goods for the whole society.
  • This understanding of rights is based on those foundational or constitutional notions of rights which are used by the courts to override legislation contrary, to these rights, even if, such legislations democratically, endorse or claims to serve the public good.
    • Here, we need to understand, we can take the example of Indian constitution. So, Parliament is empowered to enact legislation in the service of people or for the benefit of people.
    • In enacting such legislation, it cannot violate certain principles of the constitution or certain rights given to the individual by the constitution.
    • If it does so, then such person or the members of the society, may request the court, that means, supreme court or the high court which then, can review the legislation enacted by the Parliament or duly, enacted by the Parliament.
    • And then, it decides, how far that enactment is in contrary to the principles of constitution or violate, the rights protected in the constitution. And so far, it violates or limits those enactments or legislation which can be nullified by the constitution. We are talking about reviewing a Parliament Act or legislation through the constitutional mechanisms or principles.
  • The conception of rights as argued by Dworkin is about such kinds of rights, where those rights cannot be taken away, even by the Parliamentary legislation in the name of serving the common good. Thus, rights, for Dworkin are very essential for the growth of individuals.

Communitarian Theory of Rights

  • Communitarians regard rights or justice as important for the progress and development of individuals and society. Like libertarians, communitarians equally, regard rights and justice as very significant for the growth of individuals and society. However, they criticized, first the ‘a historical’ and external criteria which is applied by the liberals, to criticize the actual and everyday lived realities of communities in society. So, they want this discourse on rights should be sensitive to the actual lived realities of different communities in society and not having a kind of hypothetical, abstract or ‘a historical’ assumption about certain rights.
  • In the natural right theorists or the social contract predictions, we have seen how, individual is assumed to be independent and autonomous of society and his or her community. But in the actual lived reality, individual is always, embedded in his or her community. However, the libertarian or liberal takes ‘a historical’ or abstract understanding of individuals.
  • They criticized not the universality, or the emphasis on justice, but the liberal conception of individual. For the communitarians, individual is not an abstract, category or entity, but is deeply, embedded in his or her social and cultural community. And if, that is so, one kind of understanding of individuals as self- defining, autonomous individual is challenged and criticized by the communitarians which believed that individual is embedded in his or her social and cultural community. And that embeddedness gives a certain worldview which defines the welfare to an individual.
  • In the liberal conception, individual well-being and happiness is seen as independent and autonomous of his or her community. Whereas, communitarians, argue that individuals make sense of and enjoy his or her well-being or happiness in his or her community.
  • Therefore, they argue that while allocating rights to individuals, we should also, take into account his social and cultural backgrounds. In other words, the liberal conception wants certain rights to be given to everyone universally, where there is no difference or differentiation between two sets of individuals.
  • However, communitarians, argues about granting certain rights to individuals not because he is regarded as autonomous or self-defining individual, but because he or she belongs to a certain community. The membership to that community should also, entitled that individual to have certain differential rights.
  • Michael Sandel in his book, Liberalism and the Limits of Justice, argues for the abandonment of the liberal notion of politics of rights and go for the politics of common good.
  • These are some of the flaws of liberal premises which regards individual as a unit and therefore, the rights should be distributed based on understanding that the society is constitutive of individuals and individual has their own rights and sense of good. There are no collective or shared goals which can be defined or applicable to everyone in the society. Michael Sandel, questions such kind of argument in liberalism.
  • Michael Walzer is another such communitarian scholar, who argued that very quest for a universal theory of rights is misguided. So, for Michael Walzer, the best way to identify, the rights and goods is to find out, how a particular community understands the value of social good.
  • For Walzer, the good or social good is something, which is socially, constituted. It cannot be decided ‘a priory’ or through philosophical argumentation or counter argumentation, but society together, or communities together, constitute what is shared and what they value as the social goods. In this way, for Walzer, rights and justice are more about cultural interpretations, than about philosophical arguments
  • He argued that shared principles of rights and justice require complex equality, that is, a system or distribution which does not try to equalize all goods, like libertarian and those who believed in the equality of outcome. But it seeks, to ensure that inequalities in one sphere do not permeate into another sphere. That is, what Michael Walzer argued about the first social constitution of good and second, it should be based on participation or on the beliefs of every member in society. And society, thus, must not ensure to equalize the distribution of good. But it must ensure that inequality in one sphere must not influence or permeates in the other sphere of life, and that is how, he argued about differential or differentiated rights, depending upon different conceptions of social goods by different communities.

Multicultural Perspective on Rights

  • One of the biggest challenges of liberal democracies in contemporary times is to reconcile between the ideal of equality on the one hand and social, economic, and cultural differences of the community, on the other hand. There is an urge to equalize, to give everyone equal access, to treat everyone equally, but there is a simultaneous presence or existence of socio-economic and cultural differences.
  • When a liberal state follows a universal or uniform approach to re-distribute, it does not understand the differential needs of different individuals belonging to actual and different communities in the society.
  • Multiculturalists say that Universal citizenship is color blindness. There cannot be one size fit all solutions for a multicultural society. The difference blind approach to rights is insensitive to the differential needs of the individuals and communities. So, they argue, for group rights which should be recognized for ethnic groups and national minorities. Thus, we see an influence of communitarians on the multiculturalists.
  • Will Kymlicka calls for special rights to national minorities. He creates hierarchy of rights such as self government,special rights, polyethnic rights etc. on the basis of whether a community is of refugees or immigrants or of national minorities etc. Will Kymlicka, argues about giving special representation, or more autonomy, or to give rights based on their language, and giving ownership to lands. In that way, the condition of minorities or national minorities can be protected from encroachment and majority communities.
  • Similarly, Bhikhu Parekh, argues that in a multi-cultural society, there exists a number of cultural, linguistic and religious communities which generally, demand various kinds of rights which are not possible to be accommodated within the liberal jurisprudence of rights based on individual rights. Thus, the demands of different communities are not possible to be accommodated within this liberal jurisprudence of rights. Parekh gives the ‘Harm principle’. According to it ,as long as certain right does not harm to others it could be granted to minorities. For example wearing scarf or declaring holidays on Friday instead of Sundays for Muslim community.

Human Rights

  • It can be argued that the idea or premise of human rights discourse is based on the principle of every individual having same or equal moral worth. Therefore, they have certain rights which are inalienable or cannot be differentiated on the basis of their birth, class, caste, religion, and language.The human rights concept is essentially a liberal discourse as it espouses Rationalism and Universalism i.e. Man is rational and all men are rational and hence are morally equal.
  • So, human rights are based on the principle that every individual has certain basic rights, recognized and protected simply, by virtue of him or her being a human. There are no other criteria required for the protection of these rights. These rights are guaranteed, recognized, and must be protected simply, because a person is human-being and not because he or she is a member of any particular community The premise of these rights are based not because of the individual is a member of a particular community, but because that individual or that person is member of humanity, or more precisely, he is a human-being.
  • Human rights are moral rights and aspirations. They are not claims and are just entitlements. They were expounded in the backdrop of world war two. Where Hitler symbolized majoritarianism and fascism was mobocracy, the idea of human rights was to protect the non-dominant sections of society.A duty has been cast upon states to protect the human rights of the individuals and the international community acts as a guarantor of human rights.
  • The human rights discourse transcends those boundaries of nation and state, and includes every single individual on the planet. The human rights discourse, tries to include within its fold different communities, races, religions and other kinds of communities, and groups within its fold.

Justification of Human Rights

  • Justification of human rights can be traced to
    • Natural rights tradition as found in Locke and Jack Donnelly
    • Dignity tradition as found in Kant and Alan Gewirth.

Natural rights tradition:

  • Donnelly’s believe in the idea that through an engagement with liberalism it is possible to discern a normative conceptualization of human rights that eschew the time/space complex.(possibility of universalism).

Human dignity tradition:

  • Alan Gewirth states that the relations between human rights and human dignity are many and complex but one relation is primary: human rights are based upon or derived from human dignity.It is because humans have dignity that they have human rights.

Characteristics of Human Rights:

  • Human Rights are Universal:
    • Human rights are universal because everyone is born with and possesses the same rights, regardless of where they live, their gender or race, or their religious, cultural, or ethnic background. The universality of human rights is encompassed in the words of Article 1 of the Universal Declaration of Human Rights: “All human beings are born free and equal in dignity and rights.” They are not a monopoly of any privileged class of people. They are universal in nature, without consideration, and without exception. They are inherent in all individuals irrespective of their caste, creed, religion, sex, and nationality. Human rights are enforceable without a national border.
  • Human Rights are Inherent:
    • Human Rights are inherent because they are not granted by any person or authority. Human rights do not have to be bought, earned, or inherited; they belong to people simply because they are human.
  • Human Rights are Fundamental:
    • Human Rights are fundamental rights because, without them, the life and dignity of man will be meaningless.
  • Human Rights are Imprescriptible:
    • Human Rights do not prescribe and cannot be lost even if a man fails to use or assert them, even by a long passage of time.
  • Human Rights are Inalienable:
    • Human rights are conferred on an individual due to the very nature of his existence. They are inherent in all individuals irrespective of their caste, creed, religion, sex and nationality. Human rights are conferred to an individual even after his death. The different rituals in different religions bear testimony to this fact. Human rights are inalienable. Human Rights are inalienable because: they cannot be rightfully taken away from a free individual and they cannot be given away or be forfeited. They should not be taken away, except in specific situations and according to due process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.
  • Human Rights are Indivisible:
    • Human Rights are not capable of being divided. They cannot be denied even when other rights have already been enjoyed. Irrespective of their relation with civil, cultural, economic, political, or social issues, human rights are inherent to the dignity of every human person. Consequently, all human rights have equal status, and cannot be positioned in a hierarchical order. Denial of one right invariably impedes the enjoyment of other rights. Thus, the right of everyone to an adequate standard of living (say right of health or right of education) cannot be compromised at the expense of other rights.
  • Human Rights are Essential and Necessary:
    • In the absence of human rights, the moral, physical, social, and spiritual welfare of an individual is impossible. Human rights are also essential as they provide suitable conditions for the material and moral upliftment of the people. Human rights are necessary for the fulfillment of the purpose of human life.
  • Human Rights are in Connection with Human Dignity:
    • All individuals are equal as human beings and by virtue of the inherent dignity of each human person. There should not be any discrimination on the grounds of race, colour, ethnicity, gender, age, language, sexual orientation, religion, political or other opinion, national, social or geographical origin, disability, property, birth or other status. Human dignity should be maintained.
  • Human Rights are Interdependent and Interrelated:
    • Human Rights are interdependent because the fulfilment or exercise of one cannot be had without the realization of the other. The fulfilment of one right often depends, wholly or in part, upon the fulfilment of others.
  • Human Rights are Irrevocable:
    • Human rights are irrevocable. They cannot be taken away by any power or authority because these rights originate with the social nature of man in the society of human beings, and they belong to a person simply because he is a human being. No government has the power to curtail or take away the rights which are sacrosanct, inviolable, and immutable.
  • Human Rights are Participative and Inclusive:
    • All people have the right to participate in and access information relating to the decision making processes that affect their lives and well-being.
  • Human Rights are Never Absolute:
    • Man is a social animal, and he lives in a civic society, which always put certain restrictions on the enjoyment of his rights and freedoms.
  • Human Rights are Dynamic:
    • Human rights go on expanding and changing with socio-eco-cultural and political developments within the State. Judges must interpret laws in such ways as are in tune with the changed social values.
  • Human Rights Limit State Power:
    • States and other duty-bearers are answerable for the observance of human rights. In this regard, they must comply with the legal norms and standards enshrined in international human rights instruments. So human rights limit the state’s power.
  • Generations of Human Rights:
    • When human rights are being discussed, they are often divided up into three categories called generations. A reflection of the three generations of human rights can be seen in the popular phrase of the French Revolution: liberté, egalité, fraternité. These generations of human rights were first formally established by Karel Vesak, a Czech jurist, in 1979. This division of the types of human rights helps improve conversations about rights, especially those involving legislation and the role that governments play in human rights.

Generations of Rights

  • Louis B. Sohn classified human rights into four generations which covers civil and political rights, economic, social, and cultural rights, collective rights and subjective rights.
    • The Human Rights of First Generation (Civil and political rights)
    • The Human Rights of Second Generation (Economic, social and cultural rights)
    • The Human Rights of Third Generation (Collective rights)
    • The Human Rights of Fourth Generation (Subjective rights)

The Human Rights of First Generation-Liberty

  • The human rights of the first generation are civil and political rights of the people. Civil rights are related to the right to life and personal liberty which includes, right to life, personal liberty, security, freedom of speech and expression, worship etc. Political rights are the rights which allow the people to participate in government actions such as the right to an election.
  • Political rights are arising out when there is a clash between people and the government. These rights are essential to every individual to reduce government arbitrary actions.
  • Civil and political rights together are known as “Liberty Oriented Human Rights” and they are also called negative rights because they protect people from excesses of the state. The first generation of human rights speaks about various rights and its importance, it has been incorporated in different Constitutions of various states.
  • The first-generation human rights were also incorporated in the Universal Declaration of Human Rights, 1948 from Article 3 to 21. Also in the International covenant on civil and political rights 1966, American and African instruments of 1969 and 1981, the European Convention on Human Rights and Fundamental Freedom 1950.

The Human Rights of Second Generation-Équality

  • The second generation of human rights are socio-economic and cultural rights includes right to work, right to education, freedom of association, right to insurance for sickness and old age etc.
  • This generation of human rights guarantees the right to equality and fulfilment of minimum necessities to live as a human being. These rights are based on the availability of resources and these rights impose duties on the government to fulfil them for the betterment of individuals, hence it would be called “red rights”.(inspired by communism).
  • These rights impose positive obligations on the state, hence they are called positive rights. The Social, economic, cultural and rights of minorities together are known as “Security Oriented Human Rights” because they provide basic security in the life of the people. Also, if there is an absence of these rights the existing human beings will be in danger. These rights are incorporated from Article 22 to 28 in the Universal Declaration of Human Rights, 1948, also in the International Covenant on Economic Social and Cultural Rights, 1966.

The Human Rights of Third Generation-Fraternity

  • The third generation of human rights is collective rights. These rights originated in the 20th century known as development-oriented human rights. These rights include environmental rights such as the right to air, water, food, natural resources, pollution-free environment, and other gifts of nature. These rights empower individuals to participate in the all-round development of the country.
  • According to Louis B. Sohn, every individual belongs to a community like family, religious communities, social or political communities etc. The international law recognizes the collective rights of the individuals who are grouped into a larger group, those rights can be exercised jointly by the people and nations.
  • The right to self-determination, right to development, right to peace and solidarity, right to economic and social development, right to a healthy environment, right to natural resources, right to communicate, right to participate in cultural heritage, right to intergenerational equity and sustainability etc. are the third-generation human rights. These are also called Green Rights. The implementation of these rights is based on international cooperation; therefore these rights are called solidarity rights.
  • According to Karen Vesak, “The third generation of human rights refers to the fraternity or brotherhood. This category of rights is based on the sense of solidarity, which is essential for the realization of the major concern of the international community such as peace, development and environment”.
  • The third generation of human rights expressed in various international documents such as the Stockholm Declaration of the United Nation Conference on Human Environment 1972, the Rio Declaration on Environment and Development 1992 and other laws.

The Human Rights of Fourth Generation

  • The fourth-generation human rights linked to the intergenerational justice or the rights of future generations. This category includes rights related to genetic engineering.
  • The human genome, genetic manipulation, vital fertilization, human embryos, euthanasia, and eugenics are the activities which can generate complicated legal issues with ethical, moral and religious values. Therefore, the European Council opinion to member states to adopt principles which cover the relationship between genetic engineering and human rights so that the right to life and dignity can be understood as a rift over genetic characteristics of the individuals.

Politics of Human Rights

  • Human rights are grounded on a liberal discourse. It is seen as a purely western construct. Developing societies and societies in Global south see the Universality, equality etc. of Human rights as a western way of ‘cultural imperialism’. Thus, in UNHRC conference certain politicians of Southeast asian nations held that Human rights are another way of imposing hegemony of the west and thus they gave the idea of ASIAN VALUES.
  • In contrast to the western emphasis on individual and his or her exclusive rights, these Asian leaders have argued that ‘Asian value’, this term is not homogeneous, within it there is a lot of difference or heterogenities.They argued that the ‘Asian value’ give priority to the community lives rather than individuals, social order, respect for authority, general welfare, loyalty to family, state, and nation. That is the kind of response to the western focus on individuals and his or her exclusive rights.Human rights and democracy are western constructs.The idea of human rights is based on the values very different from Asian values and not suited to Asian countries.Where western values emphasize on individual,equality and liberty etc. the eastern values are communitarian ,hierarchy and discipline.So, they argue that in these societies, historically and culturally, their sense of welfare and happiness is constituted very differently, on different sets of values which are not always, understood or appropriately, comprehended by the western theorists or commentators.
  • In many Asian societies, like in China, the Confucius philosophy or in India or in South-East Asian countries, there is the growing realization of limitedness or selfishness of the western conception of theory or individuals, or how to govern the collective life as self-destructive. Therefore, they realize that the ‘Asian values’ are different which not only, help in organizing the collective, political or social life, but also, to provide enabling conditions for individuals and community to live together, to sustain his or her life in the lives of community. That growing realization of values, we sustain the individual and collective life in Asia which is regarded as different from the western conception of liberty. Mahathir Mohamad has listed the six most important societal values of East Asians on the basis of a survey by David Hitchcock. These are:
    • an orderly society;
    • societal harmony;
    • the accountability of public officials;
    • open- ness to new ideas;
    • freedom of expression;
    • respect for authority.
  • The comparable values held by Americans are:
    • freedom of expression;
    • personal freedom;
    • the rights of the individual;
    • open debate;
    • thinking for oneself;
    • the accountability of public officials.
  • Spokesmen for ‘Asian values’ commonly portray the West as morally decadent. Lee Kuan Yew, for example, says that in the USA the individual has acquired the right ‘to behave or misbehave as he pleases’.
  • Joseph Chan has pointed out that declarations of human rights are often general and vague; and that interpretations of human rights may therefore be properly controversial. He argues that such interpretations necessarily involve judgements about political morality, and that this allows Asian states to claim that they have a different understanding of human rights.
  • The philosophical basis of Asian values can be found in theories of ‘Cultural relativism’, ‘communitarianism’ and ‘multiculturalism’.
  • Cultural relativism is the ability to understand a culture on its own terms and not to make judgments using the standards of one’s own culture. The goal of this is to promote understanding of cultural practices that are not typically part of one’s own culture. Using the perspective of cultural relativism leads to the view that no one culture is superior than another culture when compared to systems of morality, law, politics, etc. It is a concept that cultural norms and values derive their meaning within a specific social context. This is also based on the idea that there is no absolute standard of good or evil, therefore every decision and judgment of what is right and wrong is individually decided in each society. The concept of cultural relativism also means that any opinion on ethics is subject to the perspective of each person within their particular culture. Overall, there is no right or wrong ethical system. In a holistic understanding of the term cultural relativism, it tries to promote the understanding of cultural practices that are unfamiliar to other cultures such as eating insects, genocides or genital cutting.
  • Cultural relativism emerged as a reaction to the universal rights model. Relativists challenge the concept that rights are universal, arguing that rights are dependent on cultural norms and that human rights are not universally valid because they are the product of Western norms or — in a subtler form of the argument — that human rights need to be appropriate for, and accepted in, specific local contexts in order to politically legitimate. The “Asian values” ideology is a main example of cultural relativity. Mahathir and Lee Kaun Yew viewed universal human rights as an alien imposition from the West, reflecting specific Western values, and argued for an approach based on “Asian values” instead.
  • Michael Ignatieff argues that opposition to human rights under the pretext of cultural relativism comes exclusively from those who commit human rights abuses because of their powerful positions within a particular culture.Amartya sen also criticises Asian values as a pretext for authoritarianism.
  • Donnelly eloquently deconstructs the argument that “all societies cross-culturally and historically manifest conceptions of human rights” . He concedes that while all major cultures have had some form of duty system, which governs the social recognition of human dignity, these systems however, are alternatives to rather than synonymous with human rights. Furthermore, although culture maintains a critical function in establishing and implementing universal human rights, according to Donnelly, “culture is not destiny”; thus, negotiations—through meaningful dialogue—between and amongst cultures can lead to the realization of the UDHR model.

Dworkin on Rights

  • Dworkin’s task is to explain what is involved in taking rights seriously. He maintains that people who believe there are moral rights “in the strong sense” are committed to believing that government should tolerate law-breaking in some cases, namely, when laws conflict with rights.
  • Distinctions: Most of the rights that we talk about can be broken down into separate elements. These include:
    • Claims: someone else has a duty corresponding to the right.
    • Privileges or liberties: the person with the right lacks a duty.
    • Powers: the person with the right has the ability to change rights and duties.
    • Immunities: others lack the ability to change the rights and duties of the person with the right.
  • The familiar rights that we began with combine these elements in various ways.
  • Dworkin’s “rights in the strong sense” are claims or claim-rights (the terms are used interchangeably). His “rights in the weak sense” are liberties or privileges.

Taking rights seriously

  • Taking rights seriously, according to Dworkin, means that the normal justification for government action is not good enough when the action might infringe on rights.
  • But how should courts or other government officials resolve cases in which it is not clear whether a government action would infringe on individual rights? Dworkin argues that it will not do to balance society’s interests against those of the person whose rights will be infringed. That would be to use the normal justification for government action.

Society’s rights

  • Dworkin argues that a society that takes rights seriously will not try to balance individual rights against society’s rights. The point was that a society that worked in this way would always favor the society over the individual and that, Dworkin claimed, would not take individual rights seriously.

Right to Property

Nature Of Property

  • The right to property is derived from the general theory of rights. However, it is a complex issue. The fundamental issue is—how can the right to property be made to serve the cause of social justice instead of allowing it to remain a weapon of exploitation and injustice?
  • Liberal Perspective: Liberal theory has usually regarded the right to private property as an essential ingredient of man’s liberty and his right to the pursuit of happiness. Locke held that man’s right to ‘life, liberty and property’ was a fundamental natural right, and that the state was created for the protection of this right.
  • Adam Smith, Jeremy Bentham and other exponents of classical liberalism regarded the institution of private property as an essential instrument of social progress. The right to property comprised the very foundation of market economy and the capitalist system.
  • Early liberal political theory regarded the possession of property as a proof of an individual’s stake in the state as also of his political wisdom, so much so that it insisted on linking the ‘right to vote’ with property qualification. In short, early liberalism sought to glorify and defend the right to property.
  • Modern liberal theory, however, which witnessed the cruel operation of the capitalist system and the rise of socialist theory, does not recognize any sacred or absolute right to private property. J.S. Mill, who initially made a strong plea for the security of property, later argued that the right to property was not absolute or sacrosanct, and went to the extent of advocating considerable restriction on the rights of inheritance and bequest. He criticized private property in land which was the original inheritance of all mankind, and pleaded for the taxation of rent.
  • T.H. Green , as an ardent champion of rights, paid due importance to the right to property as an instrument for exercising moral freedom. But he held that when an unrestrained right to property right becomes a hindrance to the exercise of freedom in society. Green, therefore, pleaded for reasonable restrictions on the right to property.
  • In short, modern liberal theory, instead of conceding an absolute right to property, proceeds to investigate the ethical basis of this right and, in the process, indicates the proper limits of the right to property.

Natural Rights Theories

  • Natural rights theories regard property as a fundamental right independent of institutions, though some institutions are more likely to be in harmony with natural law than others. Locke conceives of natural rights differently. It is a right which derives its support from inward morality, conscience or the rational faculty of man. Locke argues that the state has no authority to tamper with this right because it is duty-bound to protect this right.
  • Among the liberal thinkers, Locke is the chief exponent of the theory of property as the fruit of labour. Locke argued that every man by nature has a property in his own person: the labour of his body and the work of his hands are properly his.
    • Whatsoever then he removes out of nature and mixes with his labour becomes his property, ‘at least where there is enough and as good left in common for others’. (The Second Treatise of Civil Government, 1690).
  • C.B. Macpherson (The Political Theory of Possessive Individualism) has termed Locke’s view regarding the right to property as a typical expression of the idea of ‘possessive individualism’.
    • According to this view, man—the individual—is the absolute natural proprietor of his own capacities, owing nothing to society for them. He is, therefore, free to use his capacities in search of satisfactions, provided he does not harm others.

Theories of Contribution to the Public Good

  • Theories of contribution to the public good seek to make the right to property subservient to social justice rather than maintain it as an instrument of personal gratification. This view finds its fuller expression in social-democratic perspective on property.

Social Democratic Perspective

  • Social-democratic perspective allows individual ownership of property under such regulations that it is largely used to serve social purpose.

Hobhouse and Tawney on the Right to property

  • L.T. Hobhouse in his Liberalism has amply demonstrated the social origin of property. He has argued that it is the organized force of society that maintains the rights of owners by protecting them against thieves and depredators.
  • R.H. Tawney, in his The Acquisitive Society , has deprecated the tyranny of functionless property and has advocated subordination of property to social service.

Laski’s Views on the Right to Property

  • The Moral Basis of Property
    • At the outset, Laski deals with the right to property as a part of his theory of rights. Thus, in his A Grammar of Politics ,Laski very strongly argues for the limitation of the right of inheritance, on moral grounds. No property can be justified unless it is the result of the performance of socially useful functions and duties.

Marxist Perspective

  • Marxist theory views ‘private property’ like the state, has not existed from eternity, not to speak of property as a natural right. The origin of private property was attended by the beginning of exploitation in society. The state was created by the class of property-owners for the protection of its private property. It is, therefore, an instrument of exploitation of the dependent class which does not own property.
  • Friedrich Engels, in his The Origin of the Family, Private Property and the State has held that ,the origin of private property is, associated with the division of society into antagonistic classes. This division is sharpest under the capitalist system.
  • The proletariat by its very definition, is propertyless and dependent on wage labour. Marxism, however, advocates the abolition of private property in this sense, not personal property. Marxist theory holds the system of private property responsible for the erosion of human values and thus cause alienation. In his other works, particularly Critique of Hegel’s Philosophy of Right and On the Jewish Question , Marx argues that the constitution of modern representative states is, in reality, the ‘constitution of private property’.
  • Marx develop later in Capital concept of ‘the fetishism of commodities’. Fetishism of commodities implies a feature of capitalist society where social relation between different producers is reduced to relation between the products of their labour. It brings different types of skills and quantities of labour into equivalence with each other in terms of their market values. Thus, the social relationship between a tailor and a carpenter appears as a relationship between a coat and a table in terms of their exchange value in the market rather than in terms of the labour and skills embodied in these products. In other words, the commodity becomes an embodiment of value under the capitalist system of private property, while the human being as worker and real producer of value, is reduced to a commodity governed by the market forces of demand, supply and competition. The result is an overall dehumanization of man, his self-estrangement and alienation.
  • So if human values are to be restored, human freedom is to be secured, and a rational system of production and distribution is to be evolved to ensure satisfaction of social needs, the obvious course is the abolition of private property itself.
  • In short, Marxist theory views the system of private property as the foundation of capitalism which is characterized by the exploitation of man by man. It, therefore, advocates the abolition of private property in the major means of production to pave the way for a humanistic reorganization of production and distribution.
  • Marxist theory of property draws a significant distinction between ‘personal property’ and ‘private property’. It favours full protection of ‘personal property’ which is the source of security of the individual, and abolition of ‘private property’ which is an instrument of controlling the lives of others.

Mahatma Gandhi on property

  • Mahatma Gandhi sought to assess the role of property in the sphere of social as well as personal morality. His principles of non-possession (renunciation or aparigraha) and nonstealing (abstention from theft or asteya) deal with personal morality.
  • A person should not acquire any material things beyond his immediate requirement because amassing of wealth is bound to degrade his character. It also amounts to theft because thereby you deprive others of their due share.
  • Gandhi maintained that the earth has enough to satisfy everybody’s need, but it does not have enough to satisfy anybody’s greed. Then Gandhian principle of ‘bread labour’ requires that everybody should do physical labour, apart from his usual duties, and contribute to the production of material things in order to compensate for his consumption. Gandhi also commended ‘bread labour’ as an instrument of self-purification.

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