Political Theory(FYBA):Rights

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.

Theories of rights:

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 17^th and 18^th 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 18^th 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.