A
right means a legal claim, or a privilege, of an individual or of a person to
do or not to do something or to have or not to have something, to which the
individual, or the person is legally entitled to.
A
right is a claim of an individual recognized by the society and the state. A
proper definition of the term ‘right’ has three ingredients.
First,
it is a claim of the individual. However not every claim can become a right. It
is required that the claim should be like a disinterested desire or something which
is capable of universal application. The guiding factor is that what an
individual wills should be of common interest. That is, in asserting a claim
one should feel like rendering a public service.
Second,
the claim of the individual should receive recognition by the community. Since
individual’s claim is backed by a disinterested desire, it involves the good of
all and, as such it receives social recognition. Every right should receive
social recognition. Without such recognition, rights are empty claims. Rights
do not exist in vacuum, so to speak. They require the sanction of society.
For instance, an individual’s claim that none should take
his life receives social recognition as every individual wills in the same
direction. A recognition of the claim of this type ultimately leads to the
creation of right to life. Claims thus recognized are translated into rights,
and it is such recognition that constitutes them rights.
Finally,
political recognition. Rights are just like moral declarations unless they are
protected by the state. Naturally there must be some coercive force to ensure
the exercise of these rights. The state
translates the socially recognized claims or moral rights into terms of law and
thereby accords them legal recognition. The state acts like a coercive agency
to prevent the operation of the selfish wills of the individuals.
Rights, therefore have
a three-fold character. They are ethical when we deal with claims of the
individuals based on their real wills and therefore recognized by the
community. They are legal; when translated into law by the state. In the sphere
of politics, we are concerned with ‘moral rights’ which would be legally
enforceable if law were what it ought to be.
A proper definition of
the term ‘right’ should, therefore involve all the three ingredients. However,
the most important ingredient, in the realm of political theory, is the fact of
political recognition that connects the element of disinterested claims of the
individuals with the sovereign authority of the state.
However, one point
relating to the development of the concept of rights in recent times is that
the ‘claim aspect’ has overshadowed the ‘duty aspect’ of this term. Rights and
duties are correlative conceptions; that is to say, every right carries with it
a corresponding obligation. They are like the two sides of the same coin.
Rights depend upon duties. It is only in a world of duties that rights have
significance.
According to Laski:
“Rights are those conditions of social life without which no man can seek, in
general, to be himself at his best.”
A right is essentially
an entitlement or a justified claim. It denotes what we are entitled to as
citizens, as individuals and as human beings. It is something that we consider
to be due to us; something that the rest of society must recognize as being a
legitimate claims that must be upheld.
Grounds on which rights
have been claimed:
Rights are primarily
those claims that I along with others regards to be necessary for leading a
life of respect and dignity.
1.
They represent conditions that we
collectively see as a source of self-respect and dignity.
For
example, the right to livelihood may be considered necessary for leading a life
of dignity. Being gainfully employed gives a person economic independence and thus
is central to his/her dignity. Having our basic needs met gives us freedom to
pursue our talents and interests.
Or,
take the right to express ourselves freely. This right gives us the opportunity
to be creative and original, whether it be in writing, or dance, or music, or
any other creative activity. But freedom of expression is also important for
democratic government since it allows for the free expression of beliefs and
opinions. Rights such as the right to a livelihood, or freedom of expression, would
be important for all human beings who live in society and they are described as
universal in nature.
2.
Another ground on which rights have been
claimed is that they are necessary for our well-being. They help
individuals to develop their talents and skills. A right like the right to
education, for instance, helps to develop our capacity to reason, gives us
useful skills and enables us to make informed choices in life. It is in this
sense that education can be designated as a universal right.
3.
However, if an activity is
injurious to our health and well-being it cannot be claimed as a right.
For
instance, since medical research has shown that prohibited drugs are injurious
to one’s health and since they affect our relations with others, we cannot insist
that we have a right to inhale or inject drugs or smoke tobacco.
Natural Theory:
It is the earliest
theory of rights. It holds that rights belong to man by nature. They inhere in
him. They are self evident truths. One simply asserts them dogmatically. Rights
are absolute. They are pre-civil and, according to some, even pre-social. They
are inborn. They can be asserted anywhere and everywhere. The nature is the
author of certain rights that have a universal, rational, eternal and immutable
character.
The origin of the natural theory of rights goes back to
ancient Greece when, the Stoics preached the doctrine of natural equality of
mankind.
In Roman age, Polybius and Cicero drew inspiration from
the creed of Stoicism and held that civil law should confirm to the dictate of
the law of nature that was universal, eternal, rational and immutable.
During the middle ages, it was given a Biblical
complexion so that the law of nature became the law of God, whereby instead of
nature of God became the author of man’s rights.
However,
the exposition of this idea took a very prominent shape in the seventeenth
century when social contractualists like Spinoza, Hobbes and Locke accepted
this version so as to establish a proper relationship between the liberty of
the individual and the authority of the state.
They
contemplated the existence of rights in a hypothetical ‘state of nature’ and
termed them ‘natural rights.’ They sought to establish that the individuals had
certain rights even before the state came into being as a result of some social
compact. Thus, essential rights of the individuals have a ‘pre-political’
character, while Hobbes treated them as ‘pre-social’ as well. Besides, he
identified his theory of rights with his well- known doctrine of power. He
insisted that every man had the ‘right to self-preservation’ that could not be
taken away even by the sovereign rather, the individuals were justified in
violating the terms of the compact in case the government were determined to
take away the life of the subjects.
The
most outstanding place, in this direction, is occupied by John Locke who
includes three rights (relating to life, liberty and property) in his catalogue
of natural rights. To him the main function of the state is to protect these
natural rights of the individuals. The individuals have every right to resist,
even over throw, the government in case the rulers violate the sanctity of the
natural rights. These rights cannot be surrendered to any alien authority (even
to state or government) and if ever an agreement to this effect is made under
pressure or through some miscalculation, the very agreement becomes void.
In
this way, the rights are an integral part of human personality and if the
government ever seeks to encroach upon them, it will entitle the people to rise
in revolt for the sake of preserving their natural rights.
The
trend continued in the eighteenth century and some of the important political
documents found their basis in the theory of natural rights.
- The Constitution of Virginia declared: “That all men are by nature free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact derive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, with the means of acquiring safety.”
- The American Declaration of Independence of 1776 reiterated that, “all men are endowed by their Creator with certain unalienable rights.’
- Likewise, the French Declaration of the Rights of man and citizen of 1791 took it as self-evident truth that ‘men are born free and live free and equal in their rights.’
- To refer to the latest instance, we may invoke the Universal declaration of Human Rights of 1948 which says: “All human beings are born free and equal in dignity and rights.”
However, to make this
point clearer, it may be added that in the 17th and 18th
centuries, inalienable rights would have been appropriately described as moral
rather than institutional or legal; politically basic rather than derived;
natural rather than fortuitious, conventional, or supernatural: and self
evident rather than inferred.
In fine the whole idea
of natural rights is based on the assumption that irrespective of his merit as
an individual in his personal or moral capacity, man is at least equal to all
others in human worth.
Legal Theory:
The theory of natural
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 the nature of man as such. Rights are relative to
the law of the land; hence they are vary with time and space. Rights have no
substance until they are guaranteed by the state. Obviously, such an
affirmation regards rights as the creation of the political community. My right
to life, liberty, property, etc… is determined by the state. Rights are
artificial.
This implies: a) in the first place,
that there are no rights prior to the state, because they come into existence
with the state itself; b)
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 c)finally,
as the law may change from time to time, the substance of rights also changes
therewith- there can be no ‘fixed’ rights in any society, not to speak of
eternal or universal rights.
We find a trace of this theory in Thomas Hobbes, who
holds that the only fundamental right of every individual is that of ‘self-preservation.’
This right, Hobbes believes, can be better maintained by the state than by the
individual. Hence man must depend on the state for the maintenance of his
rights. He is free to do anything which is not restrained by the state. In
other words, man can have no rights against the state.
The positive theory of rights, as it is also called,
finds its clear exposition in the works of Jeremy Bentham who decries natural
rights as ‘ rhetorical nonsense’ (he rejects the doctrine of natural rights as
unreal and ill-founded) and insists that rights are the creature of law and of
organized society; at the same time, they arise out of and correspond to a principal
of utility.
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.
The
legal theory of rights implying ‘there is no right where there is no power to
secure the object of right’ and the power arising from the ‘exercise of a
coercive sanction to enforcer the correlative duty suffers from certain
weaknesses.
Idealistic Theory:
Emphasis on External Conditions as Essential to Man’s Moral development
The idealistic or
personality theory defines a right as that ‘which is really necessary to the
maintenance of material conditions essential to the existence and perfection of
human personality. The supreme right of every man is the right of personality.
By this we mean that it is the right and duty of every human being freely to
develop his full potentiality. Every other right is derived from this one
fundamental right. Even such important rights as the right to life, the right
to liberty, the right to property, etc. are not absolute rights. They are
conditional or presumptive. They are relative to the right of personality.
Thus, I have a right to life only to the extent to which it is necessary for my
highest development.
Green
speaks of rights as powers ‘necessary to the fulfillment of man’s vocation as a
moral being’.
This theory looks at rights from a highly moral point of
view. Rights are rooted in the mind of man; they are powers granted to him by
the community in order that he with others may realize a common good of which
his good is an intrinsic part.
A right must establish two things-
the
individual claiming it must be able to convince society that in doing so he is
not interfering with the like claims of his fellow beings, and
· that
he must be able to convince society that his claim is absolutely necessary for
his self-development.
Thus, a right
“is a freedom of action possessed by a man by virtue of his occupying a certain
place and fulfilling a certain function in a social order.”
Criticism:
·
The
idealistic interpretation is too abstract to be easily understood by an average
man and moreover difficulty may arise when we begin to reduce the conception of
moral recognition into practical terms.
·
Since
the very idea of personality is a subjective affair, no generally acceptable
list of rights can be drawn on the basis of this theory.
·
Moreover,
this theory seems to sacrifice social goods for the sake of individual good.
However, the
merit of this theory lies on the theoretical plane where we find that it
furnishes a safe test to rights which can be applied at all times, and herein
it is superior to the legal, historical and social welfare theories. The one
absolute right of all human beings is the right of personality.
Historical Theory of
Rights:
Historical theory of
rights holds that rights are 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 18th 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 (1729-97), 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. The advocates of Historical Theory
of Rights eulogize the Constitutional history of England as the story of the
evolution of rights through a long historical process.
Social Welfare Theory
of Rights (Emphasis on Rights as Conditions of Social Expediency):
Social-welfare theory
of rights postulates that rights are creations of society and are in essence
conditions of social welfare. The state should set aside all other
considerations and recognize only such rights as are designed to promote social
welfare. Rights make what is conductive to the greatest good of the greatest
number; they are the conditions of social good. Thus, claims not in
confirmation with the general welfare would not be recognized by the society
and thus fail from being rights.
It has the best manifestation in the works of Bentham who
led Utilitarian school of the nineteenth century, postulated the ‘greatest
happiness of the greatest number’ as the sole criterion of legislation and
recognition of rights. Among the contemporary advocates of social-welfare theory,
Roscoe Pound (1870-1964) and Zechariah Chafee (1885-1957) are the most
outstanding. Chafee holds that law, custom, natural rights, etc. should all
yield to what is socially useful or socially expedient. Rights should
determined by the ‘balance of interests’ under the prevailing social
conditions.
Social-welfare theory seems to be quite reasonable
because no theory of rights can be held valid until it serves the cause of
social justice. This theory eliminates the subjective, ambiguous, dogmatic and
static criteria. But, again, this theory presents practical difficulties. The
question is- who will define social welfare or social expediency?
At best, social-welfare theory of rights is a relative
theory and its merit is dependent on the condition that the oppressed sections
have a due share in power and get the opportunity to define social welfare for
determining the scheme of rights in a given society.
Social-welfare theory of rights found a reasoned and
elaborate expression in social-democratic perspective on rights.
Nature of rights:
Human rights can be
exercised, protected, as well as violated only in the society of human beings.
1
Rights are Social in origin.
Rights
can be enjoyed only in the society, as rights are the result of the social
nature of man. Rights are those claims which are socially recognized in order
to make a life richer, fuller, happier, peaceful, and prosperous.
According
to Dr. Benni Prasad, “Rights are nothing more and nothing less than those
social conditions, which are necessary or favourable to the development of
personality. Rights are in their essence, aspects of social life.” These
favourable social conditions are guaranteed by a politically organized society.
Hence,
Prof. Laski writes, Rights are those conditions of social life without which
no man can seek, in general, to be himself at his best self.”
Rights
are meant to enhance dignity and personality of the individual as a member of a
society. Therefore a right is claimed by an individual only as member of the
society and not as an isolated individual.
A
right signifies a claim or a power to have something or to do something or to
acquire something that is deemed necessary for a man to live like human beings
and as a member of society and therefore they are known as human rights.
2.Rights are expressions of human
liberty:
Rights
are expressions of human liberties in concrete propositions that can be
realized in an organized society through the political processes. They are the
determinants of the relationship between the individual and the state in a
political system.
On
the one hand Rights demarcate the area in which an individual is more or less
autonomous in what he wants to do and on the other they restrict the area of
the state authority. Therefore there can be no liberty without rights.
Rights
supply the details of liberty and the nature of quantum of liberty will vary
from state to state. As Laski has rightly observed that every state is known by
the rights it maintains.
The
foremost objective of rights is to create the atmosphere of freedom necessary
for the development and realization of human personality.
3 Rights are not absolute in nature
Man
is born free but his freedom is not limitless. It has been argues that the
individuals enjoy rights only as members of a society. There exists no right
outside the society. Only social living entails that an individual has some
area of freedom left to him. When all the members of the society demand this
area of personal freedom it automatically calls for limiting the area of each individual’s
freedom. Therefore every right of an individual has to be reasonably restricted
in the interest of the rights of others.
Viewed
in this sense, human rights are those limited powers or claims are recognized
by the state only to the extent, to which they are essential for the full
development and flowering of human personality, without interfering in the
similar or identical powers or claims of others in the society.
The
rights are not granted in absolute terms; the welfare of the community is an
unalterable goal.
4Rights are not unchangeable.
It
is important to understand that rights do not have permanent sanctity. The
notion of rights is eternal and universal but the actual rights granted to
individuals are not unchangeable. Rights reflect the given social economic and
political conditions. The context of time and place are important in deciding
the legal sanctions accorded to various rights. What may be considered as a
very sacred right today may not remain so tomorrow. As the conditions and
situations change significance of rights may also change.
Eg.
The Indian Constitution that originally conferred right to property on citizens
does not treat as fundamental right any more.
5
Rights are dynamic and not static.
Human
rights are not static, they are dynamic in the sense that the dimensions of the
human rights go on expanding with the socio-eco-cultural and political
developments within the state.
6Rights are organically bound up
with duties.
Though
the doctrines of natural and of human rights do not specifically mentioned
duties, the legal notion of rights emphatically correlates rights with duties.
The enjoyment of rights involves fulfillment of certain obligations. Since
rights exist and are enjoyed only in the social context it is foremost duty of
an individual to respect the rights of others. Also an individual is expected
to exercise his rights in such a way that he contributes to social richness and
welfare.
Apart
from the moral duty of respecting rights of others and contributing to social
well being, a citizen is expected to execute a number of positive legal duties
towards the state.
Rights may be injunctions Against,
or, Demands on, the State.
Rights
may be either in the form of injunctions against the authority of the state from
violating the inalienable freedom of the individuals, or, in the nature of
demands on the state to provide certain, minimum, positive conditions to
capacitate an individual to exercise and enjoy those rights.
The
civil and political rights are in the nature of injunctions against the
authority of the state; and its agencies; and the economic, social and cultural
rights are in the nature of demands on the state.
8
Evolutionary Nature of Human
Rights.
9
Rights are Indivisible and
inalienable.
Human
Rights are indivisible and inalienable and cannot be separated into water tight
compartments. It is a false dilemma to separate the political and civil rights
from the social and economic rights because we cannot enjoy civil and political
rights unless we enjoy economic, cultural and social rights, and vice versa.
A
hungry man does not understand the meaning and significance of the right to
vote, he is most likely to auction to the highest bidder in the political
market to satisfy his cruel hunger.
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