8
Principle of Rights
Introduction: Rights of Individuals, Groups and Classes
We, as individuals, groups and classes, require liberty and freedom for exercising our choices w.r.t. skills, business or place of residence, to move freely in the country choose our representative in a free and fair election. Liberty and freedom are also required for self-realization and development of our faculties and capacities of expression, speech, belief, opinion, etc. It is needed for self-mastery through protection of life and personal liberty and freedom to pursue our moral, ethical and intellectual ends with dignity and without exploitation or oppression.
Rights, as claims of individuals, groups and classes, are made against either the society or the state. For example, a society may recognize the right of a member to choose his/her partner in marriage without consideration of birth or gender, or may recognize the right to choose from only a particular group (caste, religion, ethnicity) or gender. To sustain or enforce the limits of rights, which it recognizes, society may employ various social, moral, religious and cultural mechanisms of control. However, society does not have the means of legal and coercive enforcements, such as laws, courts, police and prisons for enforcing rights. This would be possible only if the agency, which has the means of legal and coercive enforcements, recognizes the claims of individuals, groups and classes. This agency is the State. Further, it is possible that certain claims of individuals/groups/classes, which are necessary for self-development, dignity and for exercising choices, are not recognized by the society due to historical and ideological biases or dominance of a few in social set-up or gender bias. This requires the State to correct it by expanding the scope of rights. Most of all, the State must recognize a set of rights to define limitations on its authority and obligation of the citizens. There is a significant difference between the rights recognized by the society and the State. In case of clash between the rights recognized and permitted by the society with the one recognized by the State, the latter prevails. This is due to the legal sanction behind the rights provided by the State. Rights are a corpus of recognized and guaranteed conditions provided by the State for enjoying liberty by individuals/groups. As such, rights properly called are claims of individuals and groups recognized by the State.
Besides the claims of individuals, the State recognizes the claims of minority, cultural, ethnic, religious and linguistic groups, and various classes. Recognition and protection of the rights of groups and minorities in society are required to maintain peace, harmony, order and mutual co-existence in a multicultural society. Moreover, such recognition could also be in appreciation of culturally specific values.
Supporters of multiculturalism and cultural relativism advocate equal/fair opportunity to all groups for participation in the affairs of the State and recognition of relative significance and value of groups in society and their protection. Pluralists argue that the rights of the groups in society should be recognized and protected. This is because these groups have corporate personality and are as important as the State. J. S. Mill advocated freedom of the individual and minority against the overwhelming dominance of the opinion of the majority in society. This, he felt, would be required in the interest of moral and self-development of the individual. The rights of different classes, such as the bourgeoisie were the rallying point for the English and the French revolutions and of the working class for the Communist revolutions across the world.
The Constitution of India recognizes a set of rights and liberties of religious and cultural groups along with that of the individuals. Chapter III of the Constitution of India on Fundamental Rights is a charter of not only individual rights and liberties but also that of the cultural and religious groups.
Rights could be claims of individuals or groups or classes against the state, the society or a group. It must be recognized and enforced by the state. Right to vote, right to freedom of speech, expression, etc. and right to information are claimed against the state. Rights provided under Article 17 of the Constitution of India relating to ‘abolition of untouchability’ is a right of social groups against the society. It removes social disabilities based on birth in terms of castes. Similarly, prohibition of forced labour or child labour are rights against the society.
If rights are claims of individuals and groups recognized by the State, then what are the grounds upon which these claims are based? A variety of grounds such as moral, legal, natural, human, historical, social welfare, etc. have been suggested as basis of rights. Primarily, claims of individuals to be recognized as rights should be such that they are generally applicable. In other words, claims should not amount to privileges for some. However, there could be claims of minorities and under privileged groups that are to be recognized as rights.
Historically, the concept of rights has stood for ‘privileges as in the rights of the nobility, the right of the clergy, and, of course, the divine rights of the kings’.1 And also for the rights of the slave owners, the privileged classes. But in contemporary parlance, rights are basis of relationship between the State and the individual. This relationship is reflected in the concept of citizenship. Citizenship is a legally defined identity of a member of the State. It is based on the principle that individual members of the state are equal before the state, irrespective of their social, cultural, religious, linguistic or ethnic backgrounds. The state confers rights upon the citizens as individuals; it can also engage differently with different groups of citizens and confer on them separate rights, e.g. minority rights. To confer separate rights to different groups is to subscribe to principles of positive discrimination, social justice, multiculturalism or cultural relativism. Thus, discussion on rights includes grounds of rights and associated political obligations; which of the rights should be possessed by whom and which group(s); what are the principles of distribution of rights amongst the members and groups; what are the grounds and defence of human rights; and how are rights related to liberty on the one hand and justice on the other.
A group of contemporary writers such as Michael Sandel, Alasdair MacIntyre, Charles Taylor, Michael Walzer and others have taken a position that each individual develops an identity, talent, pursuits in life as a member of community only. They are critical of the libertarian position, which treats the individual as autonomous rational and moral agent. These writers are known as communitarians, because they seek to root the identity and choice of the individual in the life and identity of the community. They apprehend that if individuals are allowed to realize their rights as autonomous rational and moral agents, as libertarian advocates, there could be social and moral disasters. In a sense, communitarian position amounts to the argument that rights of the individuals should be recognized as part of a community and not as autonomous choosers.
However, there is problem in the communitarian position of recognizing rights of individuals merely as part of a community. By virtue of the fact that communitarian position suggests that the individual ‘discovers’ personal identity as community, it limits the choice about beliefs, associations and attitudes. Amartya Sen in his The Argumentative Indian, pointing to the dangerous implications communitarian position can result in, says, ‘Many of us still have vivid memories of what happened in the pre-partition riots in India just preceding independence in 1947, when the broadly tolerant subcontinentals of January rapidly and unquestionably became the ruthless Hindus or fierce Muslims of June. The carnage that followed had much to do with the alleged ‘discovery’ of one's ‘true’ identity, unhampered by reasoned humanity.’2 While the debate on whether right of the individual should be recognized as part of the community or as an autonomous chooser is still on, we are faced with another tension.
The tension between universal standards of rights of human beings and those, which are culture-specific, have been a matter of intense debate. Internationally, the debate has revolved around the arguments and counter-arguments over the primacy to be given to the rights based on individualism or culturally specific values. The Western countries term many of the non-Western countries as violators of human rights. On the other hand, countries such as China and others have argued that there should not be judgement on upholding or violating human rights, as they are culturally specific. Many groups and activists have even tried to equate the issue of caste discrimination in India as ‘racialism’ and have raised it to the United Nation forums recently, while the Constitution of India has already addressed the issue. Another example is the debate in India on the need for a Uniform Civil Code. The Personal Laws, defining the civil rights and obligations of members of certain religious communities, particularly, the Christians and the Muslims, have been attacked by many, arguing that it should not exist in India, which has a secular constitution. Someone who champions the rights of individuals (liberal position) can argue that there should be a uniform civil code defining the rights and obligations of each individual irrespective of their membership of different communities. This is because relationship of each individual with the Indian State must be defined uniformly as citizen and not as members of religion, caste or linguistic groups. But others may also be right in arguing that culturally and religiously specific rights of the people should be protected (cultural relativist position). In their view, the Indian State may be right in relating itself with different members differently.
Definition and Meaning of Rights
Defined and interpreted differently by writers and thinkers, rights are moral and legal entitlements or claims of individual or groups against society, state or a group of individuals. Rights could be claimed on various grounds such as inherent human personality, natural basis, legal basis, moral and idealist basis, historical basis, social basis, etc. Generally, society or community admits certain claims of individuals and groups, which, in turn, are recognized by the State. The State gives sanctions to these claims either wholly or selectively. It is also possible that certain rights are introduced by the State itself and did not arise from a given society or community. For example, voting right in India was introduced as a result of adoption of a particular form of government—Westminster model of parliamentary democracy. Various rights sanctioned by the State could also be against prevalent social and religious practices. Right to adult marriage means that a minor should not be deprived of her/his right not to be married before attaining a certain age. This could be against the practice of child marriage followed by some sections in society. Similarly, right to widow remarriage, right to not to be discriminated on the basis of birth in a particular caste are rights for the individuals and groups introduced by the State.
Rights can be understood differently, in terms of claims, liberty, power, privileges and immunities, etc. Rights could also be associated with the end they serve. Rights serve the purpose of providing conditions for liberty and development of capacities of personality of individuals. For example, freedom of expression and speech constitute liberty of a person to express his or her views, ideas, feelings, etc. However, to secure this liberty or freedom of each individual against the other and also against the state, some safeguard is required. Rights provide this safeguard. Rights of citizens are also necessary to promote limited and constitutional governments. Provision of rights is considered as one of the limits put on the State. J. S. Mill in his On Liberty, while tracing the history of ‘struggle between Liberty and Authority’, mentions that ‘by obtaining a recognition of certain immunities called political liberties or rights’, a limit was put to the power of ruler or king.3
Rights Defined
T. H. Green, an idealist and advocate of positive liberty, in his Lectures on the Principles of Political Obligations has defined right as ‘a power of acting for his own ends … secured to an individual by the community on the supposition that it contributes to the good of the community.’ Power of acting for his own ends implies that Green sees right as power, as capacity or empowerment to act for certain ends that the individual seeks. These ends are self-realization and fulfilment of moral nature of human beings. According to Wayper, Green believes that men have certain claims, which ought to be recognized as rights, if man is to fulfil his moral character. Green calls these rights as ‘Natural Rights.4 However, his conception of natural rights is not like the one contractualists spell. They arise not from state of nature but from moral character of men. The fact that rights are important for the individual is obvious from the first part of Greens definition. Moreover, these are also beneficial for the community. He believes that will and common consciousness of common good, and not force, are the basis of the State. As such, moral character of human beings must be realized and the community must secure rights. It is clear that only the community can secure rights and in securing them it supposes that rights secured to individuals are in the interest of the community as a whole.
Leonard T. Hobhouse views rights in terms of coordinated rights. He says, ‘the system of rights is the system of harmonized liberties.’ This means, liberties secured by rights of one must be restricted by the rights of all.
Ernest Barker, a pluralist and advocate of positive liberty, in his Principles of Social and Political Theory, defines rights as ‘external conditions necessary for the greatest possible development of the capacities of the personality.’ Barker defines rights in terms of conditions that help in development of the capabilities of personality. He measures the quality of rightness and justice of law of the State in terms of securing and guaranteeing to the greatest possible numbers of persons the external conditions necessary for the greatest possible development of the capacities of the personality. These secured and guaranteed conditions are rights. Barker adds a criterion of greatest possible numbers of persons to whom rights must be at least secured and guaranteed. This means allocation of rights requires distributive justice, which, in turn, requires application of principles of liberty, equality and fraternity. According to Barker, rights of a person are the result of the general system of rights. That is, rights of a particular person are capacities of that person of enjoying some status as a share of the whole. To clarify this point, Article 19 (g) provides the right to practice any profession, or to carry on an occupation, trade or business. Do a business leader and a pedestrian cycle repairer equally share this right? The answer is no because their external capacity to enjoy this right is different. Thus, Barker concludes that rights of a person are the whole of his/her capacity, whole power of actions within the State. The sum total of rights enjoyed by a person determines his/her legal personality. Distribution of capacity or power of action should be such that it serves the greatest possible number of persons. This calls for principle of justice and equality.
Laski in his, A Grammar of Politics, defines rights as those conditions of social life without which no man can seek, in general, to be his best.’ Laski, though associated with varied political and intellectual streams, advocates positive liberty and puts a premium on the self-development of human beings. He identifies rights with conditions of social life that help human beings realize their best self. He says that the State exists to help human beings achieve their best selves and this can be secured only by maintaining rights. This leads him to conclude that every state is known by the rights that it maintains. In brief, Laski maintains that the end of the State is to make possible those conditions of social life, which help human beings achieve their best selves. These can be secured with the provision of rights.
In defining rights Green, Barker and Laski, all emphasize on two components of rights: (i) certain external conditions to be secured by the community or the State and (ii) development of self and capacity of human beings. This means that interests of the community, society or the political order, i.e., the State and that of the individuals are not very opposed. However, the main focus is on securing rights so that individuals seek their best. R. N. Gilchrist in his Principles of Political Science, echoes similar views when he says, ‘Rights arise … from individuals as members of society, and from the recognition that, for society, there is ultimate good which may be reached by the development of the powers inherent in every individual.’ Gilchrist underlines the social aspects of individuals seeking their best. Rights will help individuals develop their powers that, in turn, serve the ultimate good of society. Social recognition and community securing individual rights is important but essentiality of recognition of rights by the State is also to be appreciated. Without legal back up rights may not be quite exercisable. Rights in one person require that his/her freedom of action is guaranteed by a penalty which prevents another person from violating it.
Ingredients of Rights
Relationship amongst the ingredients of rights suggests that claims emerging on various grounds could be recognized by the State as rights. Although this may not be coterminous with what all rights individuals and groups perceive they should enjoy in society. For example, many states may not accept the right to self-determination of various ethnic groups. It appears that individuals can make claims and demand rights on various grounds. Some of these claims or demands may remain with society and some others can be duly recognized by the state. Some rights of individuals may be recognized by the State even though there is no consensus in society, e.g., right to sexual orientation, abolition of sati practice in India, etc. These could be recognized and residual rights (see Figure 8.1).
Let us start with the three declarations that championed rights of all human beings to understand what are the grounds on which rights are claimed and what types of rights are provided for.
- ‘We hold these truths to be self-evident. That all men are created equal. That they are endowed by their creator with certain inalienable rights. That among them are life, liberty and pursuit of happiness. That to secure these rights, governments are instituted by men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of those ends, it shall be the right of the people to alter or abolish it, and to institute new government, laying its foundation upon such powers in such form, as shall seem to them most likely to effect their safety and happiness.’5
(The American Declaration of Independence, 1776)
- ‘Men are born and always continue free and equal in their rights … Government is instituted in order to guarantee to man the enjoyment of his natural and imprescriptible rights. These rights are equality, liberty, security and property. No kind of labour, tillage, or commerce can be forbidden to the skill of the citizen. Every man can contract his services and his time, but cannot sell himself nor be sold: his person is not an alienable property … society owes maintenance to unfortunate citizens, either procuring work for them or in providing the means of existence for those who are unable to labor … Education is needed by all. Society ought to favor with all its power the advancement of public reason and to put education at the door of every citizen. …’6
(The French Declaration of the Rights of Man and Citizen, 1789)
- ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world … All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in spirit of brotherhood … Everyone … has right to social security … is entitled to realization … of the economic, social and cultural rights indispensable for his dignity and free development of personality … Everyone has the right to work … right to form and join trade unions … standard of living … right to education … freely participate in the cultural life of community …’7
(The UN Universal Declaration of Human Rights, 1948)
All the three declarations quoted here, talk of natural, inalienable, or imprescriptible rights of man. The claims for rights of human beings have been made on the grounds of certain rights available to human beings even before the State comes into being. As such, natural rights are inalienable and states should recognize them. Moreover, the UN Universal Declaration of Human Rights, 1948 recognizes inherent dignity of human beings also. Thus, ground of natural rights and inherent dignity of human beings have been invoked to advance the cause of rights, such as life, liberty, property, security, equality, etc. Many of the rights proclaimed in the French and the UN declarations are in the nature of social welfare also such as social security, education, etc. Further, the American and the French declarations require that governments instituted by the people should secure and guarantee the natural rights. As such, natural rights to be secured and guaranteed by the State must become recognized rights as well. Natural rights invoke natural ground for getting recognition by the State, which means natural rights are converted into positive rights. UN Declaration recognizes ‘inherent dignity’ of all human beings. Rights are required to protect, develop and realize the dignity. This is the teleological ground of rights of human beings where rights inhere in the very character of human beings.
Positive and Negative Rights
There could be certain rights in which the State is not authorized to interfere with individual. They consist of what remains after taking into account all the legal restraints that impinge upon an individual. Rights, which arise due to authorities not interfering, are negative rights. In other words, an individual has rights because public authorities are not authorized to interfere without statutory authority. These could be civil, cultural, religious or social rights. For example, the individual's right to freedom of expression and thought, right to religious belief, freedom of assembly and association, freedom of contract, etc. are negative rights.
Certain rights may require the state to take up positive actions for guaranteeing and securing rights of individuals or groups. For example, right to work, right to universal education, right to housing, right to legal aid, etc. They are positive rights, as these require the state to provide positive conditions for securing these rights.
Under Article 19 of the Constitution of India, the rights provided are in the nature of negative rights, as they are available against State action for the protections of freedom mentioned therein. Austin says, ‘the Fundamental Rights of the Constitution are, in general, those rights of citizens, or those negative obligations of the state not to encroach on individual liberty, that have become well-known since the late eighteenth century and since the drafting of the Bill of Rights of the American Constitution…’8 For example, right to freedom of speech and expression, peaceful assembly, association/union, free movement, residence and settlement, practise any profession, occupation, trade or business, etc, are due to absence of interference. There are reasonable restrictions that the State can impose in favour of certain rights.
Right to know, which flows from the requirement of freedom of speech (you cannot speak relevantly if do not know and are informed), may fall under positive rights, as it requires positive action from the State. On the other hand, interpretation of Article 21 of the Constitution of India relating to ‘protection of life and personal liberty, has led many courts to include right to shelter9 (1987), legal aid (1979, 1986), livelihood (1994) in this category. These are positive rights, as they require certain action on the part of the State.
The Indian Constitution contains both negative as well as positive rights. Negative rights are in the nature of securing civil liberties through non-interference by the State in the conduct and action of the individuals. Positive rights are in the nature of state's positive obligations.10 Rights contained specifically under Article 19 relating to freedom of speech, etc. and Article 25 relating to freedom of conscience, religion, etc. are in the nature of negative rights. Given the specific condition of the Indian society, the rights provided under ‘prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’, ‘equality of opportunity in matters of public employment’ including provision for positive discrimination, ‘abolition of untouchability’, ‘protection of life and liberty’ have been judicially constructed to include livelihood, shelter, legal aid, and ‘prohibition of employment of children in factories’. These are examples of positive rights. However, many positive rights relating to welfare of the people, living wages, free legal aid, right to work, right to education have been assigned to Directive Principles of State Policy, which are not fundamental.
Conventions of Guaranteeing Rights
The way rights of individuals and groups should be secured and guaranteed has been attempted differently. In some countries, rights are in the nature of Residual Rights as in England; in another, they are protected as Bill of Rights as in USA and yet another, as Fundamental Rights as in India. There have been different conventions of securing rights by either limiting state interference or invoking positive obligations. We may discuss three significant systems or frameworks of providing legal rights in the UK, USA and India.
In England, the Constitution does not provide any charter or bill of rights or fundamental rights. Rights are in the nature of residual rights and are within the framework of Common law. This means, the individual has rights so long as public authorities do not interfere; do everything that is not forbidden. Rights are remains of what legal restraints take away. This mostly protects the individual from the executive. Parliament, however, is sovereign and as such can literally legislate to take away rights of the individual. Thus, rights are subject to infringement under Parliamentary supremacy. Even the British Court cannot override the same. Rights of the individual, in fact, are grounded only on ordinary law of England and are not provided through Bill of Rights or as fundamental rights.
William Blackstone in his Commentaries on the Law of England identified three rights in English law, namely the right to personal security, the right to personal liberty, and the right to private property. A. V. Dicey also demonstrated that rights were to be derived from the rule of law, as right to personal freedom, freedom of discussion and the right to assembly. Which rights should become part of common law has been a matter of debate in England.
It has been suggested that the UK should also enact a statutory ‘Bill of Rights’. It has been argued that incorporating European Convention on Human Rights (1950) into domestic law could serve this purpose. With enactment of Human Rights Act, 1998 in the UK, rights have been given the status of statutory rights. However, unlike the Bill of Rights of USA, the British Parliament is allowed to infringe the Act.11
The American Constitution guarantees rights through the Bill of Rights. The Bill of Rights is a corpus of rights that defines the scope of civil liberties and limits the legislature and the executive from interfering in the rights of the individuals and groups. In England, Parliament is sovereign in interfering in the rights of the individuals. In America, both executive and legislature are limited from interfering. The American Judiciary with its supremacy keeps a check on both the executive and the legislature from violating the rights provided in the Bill of Rights. The American Congress and Senate cannot infringe the Bill of Rights by invoking the ‘emergency or danger to the state’ clause. The ‘declarations in the American Bill of Rights are absolute and the power of the state to impose restrictions upon the fundamental rights of the individual in collective interests had to be evolved by the judiciary.’12 Thus, Bill of Rights provides a check on the executive and the legislative from interfering with the given rights of the individual. Judicial supremacy is a check on both the organs.
It may be mentioned that most of the states in America had the Bill of Rights on the time of their joining the American federation. They insisted that the Constitution of the United States of America should also have a list of rights. It was as consequence that the first 10 amendments that were carried out in the American Constitution included these requirements.13
The Indian Constitution provides for a charter of ‘Fundamental Rights’ that defines the rights provided to the individuals/citizens and various religious, cultural, linguistic and ethnic groups. Fundamental rights have been made enforceable and justiciable by provision of writs under the fundamental rights section in the Constitution. They are protected from both executive intervention and also unnecessary interference from the legislature. However, though judiciary has right of judicial review, legislature is supreme in the matters of legislation on fundamental rights. Further, in times of national emergency or on the basis of reasonable restrictions, the state can impose limits on the fundamental rights.
The Indian Constitution also provides for ‘constitutional rights’; right to property is a constitutional right. These are not enforceable under the fundamental rights category. Restriction imposed by the state on such rights cannot be challenged on the basis of unreasonableness. However, persons cannot be deprived of constitutional rights ‘save by authority of law’.
Rights contained in the Human Rights Act (UK), Bill of Rights (USA) and Fundamental Rights (India) are enacted, legal and positive rights, which are enforceable in courts.
Forms of Rights
Rights as claims or entitlements imply legal relationship between the individuals or the groups and the State or amongst the individuals and groups themselves. Morality and immorality of a claim or entitlement may not have to do anything with legality or illegality of the same thing. For example, till the Child Labour (Eradication and Rehabilitation) Act or for that matter, Immoral Traffic (Prevention) Act, were passed in India, both child labour and women trafficking were inhuman in the sense that they were against the inherent dignity of children and women, respectively. But they became illegal and hence criminal only after they have been legally banned. As such, an act or practice may be inhuman or immoral but may not be illegal and hence criminal.
Human Rights, being the inherent right of human persons must have been inherent ever since the two-legged social animal has walked on earth. But to be legal, it must be recognized and backed by state sanction. Thus, we have human, legal and moral rights. The human and moral rights can be the basis for legal rights.
Wesley Hohfeld in his Fundamental Legal Conceptions as Applied in Judicial Reasoning has identified four types of legal relations. He prefers to describe these as entitlements.14 Firstly, there is a claim right where one person asserts that s/he has claim on another. A claim right imposes mutual or corresponding duties or obligations. For example, a person's right not to be treated as ‘untouchable’ requires and obligates another person to uphold this claim. Secondly, a liberty right authorizes a person to do as s/he pleases; at liberty to do it. For example, to use a pedestrian or a road (of course not toll roads) or smoke (except where ‘No Smoking’ zone is declared) are liberty rights. Thirdly, powers as rights are legal abilities or empowered or enabled positions. It empowers someone to do something, for example, to vote (voting right), to get elected (right to occupy public office), to get employment (right to equal opportunity in employment), etc. Fourthly, Hohfeld mentions immunities, which protect a person from the power of another. For example, the right of the elderly not to be drafted/conscripted by the state into the army; diplomatic immunity of dignitaries in host countries, etc.
Hohfeld is of the view that right in the strict sense should be confined to a claim right. This is because it imposes corresponding duties or obligations on another. Possession of a claim right consists of being legally protected against another's interference. A liberty right poses no such corresponding duty or obligation.
Discussion of forms of rights does not necessarily provide inputs on the content of rights in terms of moral or legal content. Are rights moral entitlements or legal relationships? Positivists or those who take a legalist position argue that there is no relationship between law and morality. Right in terms of legal aspect means legally defined relationship between two or more persons and between the State and its citizens. It is argued that in case of any conflict between right and other claims, the former should prevail.
Dimensions or Kinds of Rights
We have discussed the concepts of positive rights (legal rights), negative rights, residual rights and fundamental rights and also rights, which are available in terms of Bill of Rights or Fundamental Rights in the Constitution. There could be various other dimensions, such as civil, economic, human, legal, moral, natural, political, social and cultural, which require the corresponding rights to be secured. These are grounds through which claims for rights can find justification. In contemporary times, it is also common to claim rights on the grounds of or on behalf of an unborn child, animals and the environment. Debate over abortion, animal protection and environmental rights are significant political debates in the contemporary times.
There are various international instruments that afford protection to various dimensions of rights, including human rights. They include the following:15
- The (UN) Universal Declaration of Human Rights [1948]
- The Convention on Prevention and Punishment of the Crime of Genocide [1948]
- The European Convention for the Protection of Human Rights and Fundamental Freedoms [1950]
- The International Convention on the Elimination of All Forms of Racial Discrimination [1965]
- The International Covenant on Civil and Political Rights [1966]
- The International Covenant on Economic, Social and Cultural Rights [1966]
- The American Convention on Human Rights [1969]
- The International Convention on the Elimination of Discrimination Against Women [1979]
- The African Charter on Human and People's Rights [Banjul Charter 1981]
These are declarations, conventions or charters that give protection to a variety of rights—civil, cultural, economic, human including moral, political and social rights. These are designed to protect a number of traditional civil and political rights. Added to these and also including some of them, are the rights mentioned in the American Declaration of Independence, 1776 and the French Declaration of Rights of Man and Citizens, 1789.
It may be useful to have a look at the kinds of rights that have been declared in the French Declaration, the UN Declaration and the Indian Constitution and also the rights identified by William Blackstone, A. V. Dicey and M. Fordham in the English Common Law. This could help us group various dimensions, such as civil, economic, human, legal, moral, natural, political, social and cultural, which require corresponding rights being secured for the individual and/or the groups.
It may be appropriate to note that consciousness about different rights for the individuals and that of the groups and demand for their recognition have been made and recognized at different occasions in history. For example, the Roman period is known for installing the Consul, the Senate and the Tribute. These three represented the respective rights and interests of the monarchical, patrician (elite and the rich) and the plebeian (lower or the common) elements. In feudal Europe, there were different groups, nobility, clergy, etc. whose rights were primary. Individual, as a concept having rights of his/her own, was neither prime nor consciously in sight. As Fernand Braudel has observed, medieval Europe was more concerned with privileges than rights.16 This meant privileges to one group or class against the interests of the other—the nobility, the vassal, the clergy, and the emerging bourgeoisie and the serfs, etc. In medieval Europe, artisans, craftsmen, merchants and occupational groups were arranged as guilds. They also reflected group's rights or privileges.
The concept of ‘Rights of Man’ or that of the individual as a conscious perspective came to the fore of debate only in post-Renaissance Europe and has continued as a staple feed for debate on rights. However, it is also recognized that claims and rights of human beings should not feasibly be based on the conceptual category of ‘individual’ only. The recognition of rights of groups will be equally important at times to preserve even the rights of the individual. For example, rights of minorities in many circumstances should be protected even to protect the basic or core human rights of the individual belonging to that category. As such, claims and recognition of rights of individuals and groups have to be appreciated in a complex dynamics of this relationship. UN Declaration on Human Rights and the provisions contained in the Fundamental Rights category in Indian Constitution recognize this aspect. Table 8.1 outlines the various dimensions and types of rights.
Table 8.1 Dimensions and Types of Rights
| Source | Rights Declared / Incorporated |
|---|---|
| French Declaration of Rights of Man and Citizen (1789)17 |
|
| UN Universal Declaration of Human Rights (1948)18 |
|
| Indian Constitution (1949)19 |
|
| Rights in common law of England [William Blackstone, A. V. Dicey, M. Fordham]20 |
|
Briefly, various dimensions of rights may be listed as follows:
- Natural rights: Natural rights are based on natural law and individuals are entitled for them naturally. These are either inherent in individual due to natural claim or claim of moral and dignity. Thomas Hobbes and John Locke have discussed natural or inalienable rights on the basis of rights prevailing in the state of nature. Thomas Paine and Thomas Hill Green have argued for natural rights on the basis of inherent moral claim of individual. In either case, naturally available rights or rights available to human moral claim are inalienable. Some of the commonly agreed natural rights are, right to life and security (even Hobbes agreed that one can disobey the sovereign when life is threatened), liberty, property and resistance to oppression. The American Declaration of Independence [1776], the French Declaration of Rights of Man and Citizens [1789], and the UN Universal Declaration of Human Rights [1948], all acknowledge natural rights as inalienable and imprescriptible. Bentham and other Utilitarian rejected natural rights as nonsense and argued for legal rights.
- Moral rights: Moral rights emanate from the very personality of the individual and are moral claims directed towards the conscience of the community or society. These tend to support individual as an end and moral agent. They are in the nature of ideal rights. In actual practice, they may or may not exist depending upon their legal recognition and enforcement. For example, Socrates, a Greek thinker, insisted on the right to speak truth, as he preached, even at the cost of drinking hemlock. Immanuel Kant, a German philosopher, felt that human beings should be treated not merely as means but as end also. Green also argued that individuals need rights for development of moral consciousness. Contemporaneously, debate over right of an unborn child or for that matter, right of a woman against rape in wedlock may be considered as examples of moral claims. Moral claims have been argued for securing legal rights; law against gender determination and abortions, laws protecting women against rape and violence in wedlock. However, Bentham was of the view that moral rights are a mistaken way of conceiving ‘legal rights that ought to exist’.21
- Human rights: Human rights can be considered as a combination of natural and moral rights. In fact, it has been argued that human rights are the most influential form of moral rights. But not all human rights come merely from moral claims. Many moral claims would be culture or community specific and could not be considered as sole foundation for human rights. In the Preamble, the UN Declaration on Human Rights [1948], spells that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of human family is the foundation of freedom, justice and peace in the world.’ The International Covenant on Civil and Political Rights states that ‘human rights derive from inherent dignity of human person.’22 As such, they are general rights rather than specific rights and are universal to the very existence of all human beings. Human rights are based on human personality and this is not bereft of moral claims though. But human rights also seek from natural rights in a large way and reflect fundamental inner human derive irrespective of communitarian or cultural specificity. Human right requires all human form and personality, in whatever age group, to possess the same claim of human development and personality, lest the claim for rights of unborn child would be irrelevant. It is not settled as to how are human rights different from a combination of natural and moral rights, social and economic rights, cultural rights and political and civil rights. UN Universal Declaration itself appears to include moral, natural, cultural, socio-economic, civil and political claims as basis of human rights. Incidentally, many of the claims that women's right groups insist, may appear initially as moral claims based on gender relations, e.g., against rape in wedlock vis-à-vis consent. However, they should be considered as part of human rights and accordingly women's rights with gender specificity should be treated as human rights issues. After all, the criteria of inherent dignity of human person does include the human person of a women, a child, and even an unborn child.
- Civil or social rights: Rights in person and property of an individual in relation to society or community are civil rights. It goes without saying that civil and social rights are claims based on natural, moral and human grounds. It could include rights to (i) physical freedom such as right to life, liberty and security, health and movement of body, etc. (ii) intellectual freedom such as right to conscience, thought, education, belief, religion, expression and speech and also right to freedom of association, press, etc.; and (iii) contractual freedom such as right to have contractual relations with others. Contractual freedom will encompass right to enter into contractual relations in economic and social (marital) aspects. Right to property is a significant civil right that comes under the contractual aspect and includes right to hold temporarily or on behalf of others, possess, transfer, exchange and dispose off property. Right to property is also treated as economic right. Social equality is one of the important aspects of social rights as enjoyment of rights may get affected if right to social equality is not secured. Right to social equality implies absence of distinction based on caste, race, class, colours, language, sex, religion, etc. Article 2 of the UN Universal Declaration of Human Rights recognizes right to social equality. Indian Constitution also recognizes right to social equality and Article 17 against untouchability specifically reflects this aspect.
- Economic rights: Rights that relate to a person as a worker and his/her engagement in gainful employment come under the category of economic rights. The French Declaration provides for ‘Rights to labor, tillage, or commerce to the skill of the citizens’, the UN Universal Declaration spells right to work, free choice of employment, protection against unemployment, right to equal pay for equal work, right to form and join trade unions for protection of interest [Art. 23] and right to rest and leisure (reasonable limitation on working hours and periodic holidays), etc. [Art. 24]. There are two views on economic rights. From the provisions mentioned previously appearing in the French and UN declarations, it appears that economic rights are claims of workers and those who are employed and are having no means of production or employment. But it is also argued that economic rights includes right to contract, own and manage means of productions, etc. We can infer that economic rights could be described in two ways—one in terms of workers and employees and the other in terms of owners and managers. In fact, recognition of economic rights of the owners and managers and that of the workers and employees has evolved at two different times of history. Seventeenth and eighteenth centuries witnessed claim for recognition of economic rights of the owners and managers and got identified with early liberalism. It is only in late eighteenth and nineteenth centuries after the socialist movements and reformist liberal idea stressed the need for rights of workers that their economic rights came into picture.
- Political rights: The idea of political rights is a result of laissez-faire and liberal position, which stressed non-interference of state in individual's affairs. Early liberalism argued for rights of individual to limited government. John Locke, for example, argued for a limited representative government. Bentham advocated for one person; one vote exemplified by the utilitarian principle of each person is to count for one and no one for more than one.23 William Blackstone treated political rights as negative rights in that it is about curbing government. The claim for political rights emerged from the idea that people being the repository of supreme power, should be the electors and constituent of government. Barker, for example, has advocated that political rights instead of being treated as negative rights, as Blackstone holds, should be taken as right to constitute and control government. Thus, political rights in the form of right to vote and right to contest, get elected and occupy political offices have been stressed. Right to oppose constitutionally and peacefully; right to petition; right to form union and associations and defend political freedoms and other interests; right to hold public meetings, etc., also came to occupy the same footing. In the Indian Constitution, the right to vote is a constitutional right under Article 326 with the statutory backing in the Peoples’ Representation Act, 1951. Political rights are rights of individual as citizen. Liberal democracy advocates political right of universal suffrage, i.e., right to vote to all eligible male and female citizens. However, universal suffrage could not become a reality at least for women even in England, the mother of Parliamentary democracy, till 1919. Secondly, while political rights were very much advocated in European countries, the same however, were denied to people under colonial rules in ninteenth and first half of twentieth centuries.
- Legal rights: Legal rights have legal basis. They are a product of and protected by laws. Legal rights relate to an individual as a legal or juristic person. Theorists who support the monist view of sovereignty such as Hobbes, Bentham and Austin argue that all rights are a product of laws formulated by the sovereign. Legal rights are those, which are legally provided. For example, in India now, right to information is a legal right as it has been provided for by an Act.
- Women rights: Rights in their natural, moral, human, civil and social, economic, political and legal aspects do have relationship with women. These rights should be gender neutral and should be available to both male and female. Specifically, lack of right to vote, equal pay for equal work, equal property rights, etc. is reflection of an unequal distribution of rights. It has been argued that unequal distribution of rights due to gender bias has also resulted in women's subordination, exploitation and violence against them. As a result, demand for legal and political rights for women has been made. Feminist movements have largely been influenced by the ‘equal right’ considerations. We come across such instances where women right activists have fought for equality of rights, especially right to vote. One such instance is the Women's Rights Convention in America, which in 1848 adapted a revised Declaration of American Independence. It read, ‘We hold these truths to be self-evident: that all men and women are created equal.’24 Elizabeth Cady Stanton, the women's rights activist in America, was one of the vocal supporters of the ‘equal right’ movement in the mid-1840s. Women rights have also been understood in terms of securing their rights within wedlock, including rights against family violence, rights against rape and sexual abuse in wedlock. However, ‘equal right’ feminist movement has to grapple with certain religious and cultural specific issues. It has been argued that there may not be universal women rights per se. For example, a women's right to dress as she wishes may be restricted by a religious practice itself. Further, it would be difficult to find a moral or teleological argument to support or deny whether a bikini or a naqab (long veil generally worn by Muslim women in many countries) is expressive of freedom or subjugation, unless it is by choice. Similarly, many of the women rights are subject to the political system that prevails. For example, in a political system that has not allowed political rights to male, political rights to female are absent. The question, which gains importance in this context, is how to construct an ideal type of women's rights. The new direction to feminist movement came from the publication of Betty Friedan's The Feminine Mystique in which she advocated liberation of women from mere motherhood to full human creativity. She proclaimed abortion as woman's civil right and exhorted women to become active self-determining people. At times, radical feminists have portrayed women rights as if they are opposed to male rights. Historically, this has been due to identification of political and economic order with patriarchy, i.e., male domination. Even male-female conjugal relationships have been seen as one of domination. As a result, demand for sexual liberation from male domination has been made. Perhaps it is better to argue that women's rights should be part of human and moral rights. But given the demands for women rights being made on various grounds and against various aspects of ‘male domination’, it appears that the debate on women rights is still evolving.
- Right of self-determination or right of nationhood: Literally, self-determination stands for ability to control one's own destiny and it relates to autonomy, freewill and freedom of individual in deciding as a moral agent. In the context of organized political movement of groups, the right to self-determination means right to decide about self-rule or government or be sovereign from others. This refers to the claim of community and cultural, ethnic and linguistic groups. In the early nineteenth century, cultural, ethnic and linguistic similarity gained importance as the basis of nation-state and the basis of political organization. In fact, in the post-First World War, Woodrow Wilson advocated the doctrine of right of self-determination, as the basis of reorganizing the Austro-Hungarian, the German and the Ottoman Empires. As a result, Poland, Czechoslovakia (taken out from Austria), Serbia, Yugoslavia for Croats and Slovenes (taken out from Austria and Hungry), Estonian and Lithuania (taken out from Russia), Albania, etc., came into being. This was the first wave of operation of the doctrine of right to self-determination in Europe. In the post-Second World War, this doctrine was invoked by many nationalities to gain independence from colonial rules in Africa, Asia and Latin America. In fact, movement for creation of Bangladesh out of Pakistan can be cited as an example of operation of right to self-determination on linguistic basis. This could be termed as the second wave of operation of the doctrine of right to self-determination. After the breakdown of the erstwhile USSR and the Eastern European communist bloc, a third wave of operation of the doctrine of right to self-determination took place. A host of countries in Central Asia and the Balkans emerged out of this bloc by- and-large coinciding with their ethnic, linguistic and cultural identity with the statehood. While the doctrine garners supports from the liberals because of their commitment to the principle of self-determination and autonomy, it also got endorsement from the Marxian angle, as it was invoked in the struggle against colonial and imperial rule—imperialism being the highest stage of capitalism. However, we may add that the doctrine of right to self-determination has proved to be a double-edged sword. It has proved to be problematic in poly-ethnic and multicultural national-states.
- Environmental rights: Environmental rights refer to claims of communities or groups for protection and conservation of nature and surrounding environment (neighbouring forest areas, sources of water and water bodies, etc.) for sustainable benefit of whole of human beings or groups/communities sharing the neighbouring habitat. Sustainable benefit implies drawing benefits from nature and environment without progressive damage to it. Environmental rights have been insisted in many ways. Green movements and environmentalism are expressions of collective effort to protect, conserve and sustain nature locally and globally. These movements are also critical to the damage to nature created by industrial countries. There have been certain groups and communities that have struggled against environmental damage locally. For example, the Chipko movement in western Uttar Pradesh under the leadership of Sundarlal Bahuguna fought to save trees by adopting and protecting them from being cut or felled; the Narmada Bachao Andolan (Save Narmada River Movement) under the leadership of Baba Amte and Medha Patekar has been fighting against peoples’ displacement due construction of dams. It is generally agreed that environment presents public good and is collective heritage of all. Though the debate on relative merits and demerits of development versus damage to environment is still on, it appears that the traditional rights of people residing in natural habitats and forests to have rights to forest products, access to natural water, grassland and such accesses are getting limited due to either their displacement or damage to nature.
- Minority rights: Minority rights imply two aspects—rights of political minority and rights of social-cultural or/and religious minority. So far as conception of political minority is concerned, this is temporary and dynamic situation in democracy. Politically, majority is the operating criteria in selection of office bearers and decision-making in democracy. But majority and minority are shifting and non-permanent. Even though, at least, three thinkers and statesmen namely, Thomas Jefferson, J. S. Mill and Alex de Tocqueville expressed their concern over ‘majoritarian tyranny’. They apprehended that domination of majority would be inimical to the self-development of the individual, as those with minority opinion or view would be repressed. Jefferson, on the occasion of his inaugural address on 4 March 1801 on becoming President, emphatically spelt out the principle of minority rights on political terrain. He said, ‘All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.’25 In the field of social-cultural and or religious minority, various political instruments and charters have been provided for protecting their rights. For example, the Indian Constitution has provided certain rights to social-cultural and/or religious minorities. It may be noted that Motilal Nehru Report, 1928 has also provided for right to freedom of conscience, free profession and practice of religion, provision relating to elementary education of members of minorities. Granville Austin says that these rights were in fact called ‘Minority Rights in the early days of the Assembly and they appear in the Constitution as Rights Relating to Religion, Cultural and Educational Rights …’26
We have briefly surveyed the dimensions and kinds of rights contained in various declarations, charters and conventions. We have also discussed how various kinds of grounds are associated with claims for rights.
Theories of Rights
The concept of rights is said to have originated in the medieval period and, as Isaiah Berlin has mentioned, the notion of individual rights was absent from the legal conception of Greeks and Romans.27 Andrew Vincent corroborates this position and says that the notion of rights is comparatively recent. The concept of jus as ‘right’ in Roman Law is closer to modern concept of ‘justice’ than the concept of ‘right’ as we understand in term of social and political claims.28 In fact, as Clayton and Tomlinson have pointed out, trace of the notion of rights may be linked to natural rights.29 In contemporary times, political debate on rights occupies a central position and the debate has largely been due to different grounds that have been invoked for justification of rights. Broadly, three traditions can be identified as theoretical grounds relating to rights—Liberal—individualist position, Marxian position and Human Rights position. These theories basically focus on matters of origin, grounds of claim of rights and their nature.
Based on origin, grounds on which rights are claimed and justified, we may discuss the following theories:
- Theory of Natural Rights
- Theory of Legal Rights
- Theory of Moral-Ideal Rights
- Theory of Historical Rights
- Theory of Social-Welfare Rights
- Theory of Human Rights
- Marxian Theory of Rights
Theories based on natural rights, legal rights, idealistic rights, historical rights and social-welfare rights are generally within the liberal-individualist framework. The Marxian theory of rights invokes class nature of rights. Human rights theory may be treated as a combination of various grounds and recognizes individual and group bases of rights.
Theory of Natural Rights
Natural rights are one of the earliest grounds for claim of individual rights. Natural rights are natural claims because they are gifts of nature, product of law of nature and do not depend upon any authority or sovereign power for recognition, prescription and enforcement. Two grounds, contractual and teleological, have been identified to support the theory of natural rights.
Contractual ground implies that they carry the natural rights, which were available to individuals in the state of nature, in civil society as a result of their social contract. These rights are inalienable and cannot be separated or taken away from the individual as they are inherent and prior to society and the state. They are inviolable and cannot be changed by sovereign or the authority of the state, as they are a product of law of nature or an unchangeable cause and not created by the sovereign. The natural rights are imprescriptible as they are not prescribed and sanctioned by sovereign.
Teleological view of the natural rights looks at the final purpose, which these rights serve. This could be the purpose of moral development of human beings and their progress. Teleological or teleology stands for the ultimate cause and associates everything with a purpose and an end. It is derived from the Greek word telos, which means ‘end’.
Both contractual and teleological grounds support claims for natural rights with the help of certain overarching, final and unchangeable causes—law of nature on contractual ground and moral character of human beings on teleological ground.
Natural rights are linked with early liberalism and two of its ardent advocates, Thomas Hobbes and John Locke. They provide contractual ground to the theory of natural rights. Blackstone, Spinoza and Jefferson supported theory of natural rights. In contemporary times, Robert Nozick has employed the theory of natural rights to advance his concept of justice. Thomas Paine and Thomas Hill Green have advocated natural rights on the basis of inherent moral claim of the individual, teleological ground.
Contractual ground of natural rights: Hobbes, Locke and Rousseau
Hobbes is the earliest advocate of natural rights on the contractual ground. Macpherson regards Hobbes a theorist of natural rights because he makes political obligations dependent on his postulates of individual natural rights. For Hobbes, the state of nature is one of natural rights without any control. By portraying a state of complete or licentious liberty and natural rights of the individual, Hobbes could project two things. One, that natural rights are derived from a pre-political and pre-social condition and hence inhere in the individual and are inalienable, and second, that these rights emanate from the law of nature and are fundamental. However, due to absence of a controlling authority or sovereign, natural rights of each have impeded the natural rights of other. It is like a situation where everyone having right to have a gun and kill whomsoever one wants, ultimately becomes such that everyone fears everyone else, a situation of perpetual war.
And to constitute civil society and the commonwealth under a Leviathan, natural rights should be surrendered to this single sovereign as a result of social contract. Thereafter, the sovereign would be the sole source of rights. Hobbes requires surrender of all natural rights to sovereign, except the right to life or self-preservation. Institution of the commonwealth, powers of the Leviathan and political obligations of the subjects under Leviathan, all are based on the postulates of natural rights. He derives a doctrine of maximalist political obligation with the surrender of all natural rights to preserve primary existence, i.e., life.
Hobbes, it is said, started as individualist but ended as absolutist. This is because he based his postulates of the social contract on natural rights of individuals but ultimately ended up surrendering them to a single sovereign. However, Hobbes accepts the sanctity of natural right to life and is ready to accept violation of this a ground for revolt on the part of the subjects.
It may appear as if Hobbes seeks the end of natural rights. But it should be noted that the very basis of social contract is natural rights. In fact, right to life and self-preservation as the primary concern prompts individuals to enter into contract and institute the sovereign. This implies various rights, including right to revolt in case life is under threat. Further, Hobbes's social contract is based on the assumption that individuals have the right to contract.
It was Locke, who championed the cause of natural rights in a strong way. Locke's Two Treatises of Government contains his exposition on social contract, natural rights and government. Unlike Hobbes, Locke's state of nature is not chaotic and licentious. Wayper says, ‘the state of nature is a state in which men are equal and free to act as they think fit, within the bounds of the law of nature.’30 Individuals in the state of nature possess the natural rights of life, liberty and property. But due to absence of an established, settled or known law; a known and indifferent judge; and an executive power to enforce such decisions, there is requirement of social contract so that three organs—legislative, executive and judicial, are instituted.
By conceiving state of nature as peaceful, social and not licentious and pre-social, Locke does not require the individual to surrender their natural rights as Hobbes did. He, in fact, invokes the natural rights to support a limited constitutional government and make natural rights inalienable and inviolable in the state. Social contract results in only partial surrender of natural rights to the supreme authority. Even the supreme authority remains with the people. The rights, which are surrendered, include power of punishing others; being interpreter of natural law; its executor as well as adjudicator. Except these, individuals retain the natural rights of life, liberty and property. Natural rights provide individual exclusive and indefeasible realm, which the state cannot violate or negate. As such, government is trust of the people for protection and security of the natural rights. Unlike Hobbes, Locke provides wider scope of resistance by the people against violation of natural rights.
Right to property is an important right in Locke's formulation. An individual acquires property through labour. Interestingly, Locke's concept of property as natural right is connected with mixing of labour. Locke says, ‘the labour of his body and the work of his hands … are properly his,31 meaning thereby that whatever one creates by one's labour is his/her property. As such, individual carries property in person and goods. This means, property is in those possessions or acquisitions that individuals obtain from labour. By extension, it is also in those possessions and acquisitions that one acquires by employing other's labour by payment as contractual exchange. The principle of contractual exchange is the basis of capitalist economy. This was a sharp break from the feudal economic and political order, which was based on privileges.
By invoking the conception of natural rights, Locke provided a strong theoretical basis for a liberal-capitalist order and limited political obligation of the individuals. Locke's conception of natural rights of life, liberty and property provided basis for civil (life and liberty) and economic (property) rights, limited government, minimalist and non-interfering state, and liberal-capitalist order. Violation of natural rights can be sufficient reason for people to revolt against the government, which is a trust to protect these rights.
Rousseau's state of nature is a state of idyllic life in which ‘noble savage’ lives peacefully and happily. They have natural rights. However, natural rights should be surrendered to the will of the civil society. Rousseau gave primacy to civil liberty represented by the General Will over natural rights.
Theory of natural rights is based on the conception that there are pre-existing and inalienable rights of the individual, which are available independent of and prior to society. This theory envisages a self-contained individual with proprietorial rights on person and capacity. Macpherson in his The Political Theory of Possessive Individualism has termed it as political theory of possessive individualism. It has been argued that rights, instead of being prior to society and state, and natural, are, in fact, socially and historically determined. For example, the modern state recognizes a range of individual rights that were not available to earlier forms of state. As such, what Hobbes, Locke and Nozick argue as natural and prior rights, could only be those of a historically specific market.32 Bentham has summarily rejected natural rights as ‘simple nonsense’. The logic behind Bentham's rejection of natural rights may be the very rejection of law of nature. Bentham does not admit imprescriptible rights and natural law and advocates rights as sanction by law. Similarly, as Wayper says of Bentham, ‘His State, too, is the sole source of rights’ and ‘rights cannot be maintained against the state.’33 In this regard, Bentham stands in sharp opposition to Locke, who admits natural rights against the state. According to Bentham, neither law of nature nor natural rights could be admitted against the state.
Teleological ground of natural rights: Paine and Green
Thomas Paine and T. H. Green have sought to justify claim of prior rights of the individual, i.e., rights independent of recognition of society and the state, based on teleological grounds. This means individuals have inherent moral rights based on dignity, need for self-development and self-realization as human beings.
Paine wrote the celebrated book The Rights of Man (1791), which contained a refutation of Edmund Burke's criticisms of the Revolution in France. Paine was indicted for treason in England for this book, as he had supported the French Revolution and appealed for overthrow of the British monarchy.34 Paine advocated overthrow of English monarchy because he thought the rights of man could be better secured by a republican constitution than by English government under monarchy.
Though Paine supported natural and prior ‘rights of man’ he was opposed to the doctrine of social contract. He thought this amounted to some type of permanent binding on all generations and would impede progress. Instead, Paine sought to build theory of natural rights on the basis that they are ‘pre-existing in the individual’, that is to say, the rights of man are inherent in the very personality of the individual; almost like present day insistence on human rights. The individual carries these rights in the civil society as part of inherent rights of personality for which social contract is not required. In The Rights of Man, Paine says, ‘the end of all political associations is the preservation of the rights of man, which rights are liberty, property, and security … the right of property being secured and inviolable, no one ought to be deprived of it …’35 We can see that both Paine and Locke list similar natural rights, i.e., rights of life (security), liberty and property. Though, Locke invokes a contractual basis for admitting the inviolability of these rights in the civil society and by the state, Paine argues on the basis of inherent rights of individual personality.
T. H. Green, a supporter of positive liberty, a provides the basis for reformist liberalism and welfare state. He ‘revised the conception of the individual; and in particular . individualist account of how individuals come to have rights.’36 Locke's Liberalism supported conception of an indiividual who is self-contained, atomist and a carrier of natural rights. Green's liberalism invoked conception of an individual as carrier of natural rights because these rights are prior to society and not because he is an atomist or self-contained. Green stressed that rights of an individual have meaning because individuals are to be seen as social beings and bound by common good for enjoying rights. Freedom for him, ‘is a positive power or capacity of doing or enjoying something worth doing or enjoying and that too, something we do or enjoy in common with others.’ If so, then recognition of this freedom cannot be admitted or sustained on the conception of Lockean premise of an individual who is self-contained, atomist and a carrier of natural rights. Green's individual is socially and ethically related to a ‘larger common good’, to use Tony Walton's phrase, for enjoying freedom.
Green views the rights of human beings tied up with two things—one, with moral character of individual-self and second, with common good. Moral character and common good provide bases of individual rights. And if moral character is linked with positive power or capacity, it requires realizing this ‘in common with others.’ Individual rights are dependent on social recognition but that recognition emanates from moral consciousness of the community, which is common good. According to Tony Walton, ‘For Green, rights could not be explained in terms of an individual's ‘natural’ freedom … or pre-social individual autonomy, … On he contrary, the extent of a person's rights is sanctioned and recognized by the common good which is their source and foundation.’37
Implications of Green's conception of individual rights as embedded in social recognition based on moral claim are: (i) rights should be enjoyed in common with others and not as atomistic and a self-contained person that Lockean liberalism advocates, (ii) common good being source and foundation of rights, requires that basic resources of society should be equally available to all for enjoying the positive power or capacity by each individual, (iii) while Lockean conception of natural rights admits inalienable and prior rights vis-à-vis society and state and Hobbes's and Bentham's conception of rights ground rights in the recognition of the state and the sovereign, Green grounds rights in the moral character of an individual and recognition of the community which he calls ‘Natural Rights’, (iv) while Locke's conception requires noninterference by the state in operation of the rights of life, liberty and property, Green's conception of rights entails state's pursuing common good for realization of rights.
Natural rights and contemporary debate: Rawls and Nozick
Two contemporary theorists, John Rawls (A Theory of Justice) and Robert Nozick (Anarchy, State and Utopia), have based their formulations of rights of individual and justice on social contract and natural rights, respectively. Rawls has used the idea of deriving rights from social contract to present his views of an equalitarian social order. He takes the example of hypothetical individuals who are unaware of what sort of individuals they are (selfish and self-contained or social; competitive or cooperative; possessive or sacrificing) or what position in society they would occupy. Then Rawls says, ‘if these hypothetical individuals were devising a structure for future society … would agree that each person should have equal right to the most extensive total system of equal basic rights which are compatible with a similar system of liberty for all.’38 Rawls seeks to argue that when individuals enter into a social contract, the rights that would emerge from it would be based on the principle, which protects the individual from the oppressive effects of others. And these would include, as Clayton and Tomlinson say, ‘conventional civil liberties such as freedom of speech, freedom from arbitrary arrest, freedom of conscience and freedom to hold private property’. Incidentally, these are also the rights that natural right theorist advocates, right to life or security, liberty and property.
Drawing from Locke's inviolable property rights, Robert Nozick has developed the concept of prior and inalienable individual rights. On this basis, Nozick attacks the concept of equalitarian justice and welfare state. He contends that individual rights have priority over other principles, such as equality. Based on inviolable property rights, Nozick seeks to develop an entitlement theory of people's natural assets in the sense that people are entitled to the fruit of their assets or skills and to use them to their advantage.39 For example, he argues that a doctor is entitled to his/her skill and should not be robbed of the fruit of entitlement. He rejects the argument that health being a fundamental service should not be subject to selling and purchase and should require regulation of doctors, as he would treat skills not as common assets. Nozick's contention that liberty is incompatible with and has priority over equality and every individual has exclusive rights in him and no rights in anyone else (entitlement theory), means every individual has inviolable right to liberty and property. As Clayton and Tomlinson point out, for Nozick ‘rights are ‘side constraints’ which place moral limits on goals which may be pursued by us in the sense that whatever we do, we must not violate the rights of other’.40 Thus, entitlement theory means everyone has exclusive right in himself/herself and in no one else. Implication of this way of looking at rights is that no one should be directed to pursue a goal that violates the exclusive right, e.g. the doctors directed to use their skill for others by regulation.
Critical evaluation
The theory of natural rights presents claims for rights based on the grounds, which are prior to recognition by the State or civil society. These rights are treated as eternal, permanent, inherent, inalienable, imprescriptible and immutable. However, it has been argued that the natural right to property has been historically unavailable and is relevant in a capitalist-market context. As such, it cannot be a natural right rather related to a particular context of capitalist relations. It is also argued that properly speaking, ‘rights are socially and historically constituted’, to quote Walton's phrase. It can also be argued that theory of natural rights admit rights in the civil society on the basis of a contract which is hypothetical. In fact, both state of nature and social contract are hypothetical and not based on historical basis. In short, we can say that natural rights theory advocates rights on non-social basis and admits conception of individual as atomistic and self-contained. It does not admit recognition of society or state as significant for rights to exist. We have seen above, Bentham does not admit possibility of natural rights, and so would many, who consider recognition and prescription by the state or sovereign as the basis of rights.
However, significance and influence of the theory of natural rights should not be discounted. Firstly, not only that it provides ground for liberal–capitalist order, it also provides basis for a democratic political set-up and various principles associated with it. Principles such as limited government and that too as trust of the people to secure the natural rights; right to resist and revolt against the government if these rights are violated; non-interference by the State in the economic activities of individuals, etc. are significant in this regard. Secondly, doctrine of natural rights is said to have inspired the English Revolution (1688) and became the basis of declarations of rights of man in post-revolutionary contexts in the eighteenth century of which the American Declaration of Independence (1776) and the French Declaration of Man and Citizen (1989) are important. They were significantly influenced by the theory of natural rights as obvious from the wording and claim of ‘inalienable’, ‘natural and imprescriptible rights of man’ appearing in the declarations. The UN Universal Declaration of Human Rights (1948) is also influenced by this and treats rights as inalienable. However, it takes rights as inherent in the dignity of human beings, which covers both teleological and human rights grounds. Thirdly, contemporary constitutions in many countries declare charter or bill of rights. For example, Constitution of India has included charter of rights in the form of fundamental rights, which provide for right to life, liberty and property, though right to property now remains only a constitutional right. Fourthly, concept of natural rights has provided ground for human rights arguments as well. Human rights claims have been argued for enactment and provision of legal rights. We can also say that corpus of legal rights invariably either reflects the claims made in the form of natural rights or the emerging claims of human rights.
Theory of Legal Rights
Theory of legal rights presents a legalist or law-based position on origin, claim and nature of rights. It traces origin or source of rights in the form of enacted laws that have legal or positive authority behind them. Heywood defines legal rights as ‘rights which are enshrined in law and are therefore enforceable through the courts.’41 He further elaborates this by saying that legal rights correspond to positive law hence they are called ‘positive rights’ also. Legal rights, unlike natural rights, are not pre-existing and prior to civil society and political authority. They are product of a definite source in the form of sovereign and the state. Theory of legal rights properly speaking is a theory of state-created rights. Legal rights are rights, which are prescribed by law and recognized by the courts of law as enforceable.
Bill of rights versus common law
A common practice that prevails in providing legal rights is through a charter or bill or rights. Constitutions of all countries that provide rights to its citizens do that through Charter or Bill of Rights. The Constitution of France, USA and India (Fundamental Rights) for example, provide declarations of rights of the citizens and individuals including some of the cultural, religious and minority groups.
However, we have one exception in the example of Britain. The British Constitution does not have a written Charter or Bill of Rights as it follows ‘common law’ rights.42 Here, rights are in the nature of ‘residual rights’ and are within the framework of Common law. This means, notwithstanding the absence of a written charter, so long as public authorities do not interfere with the individual, the individual has rights or can do everything that is not forbidden. Constitutional commentators, A. V. Dicey (Introduction to the Study of the Law of Constitution), William Blackstone (Commentaries on the Law of England) and recently, M. Fordham (Judicial Review Handbook) and T. Allan (Constitutional Rights and the Common Law: Law, Liberty and Justice) have sought to identify legal rights inherent in the common law.
With the enactment of the Human Rights Act, 1998 in UK, rights have been given a status of statutory rights. However, unlike the Bill of Rights of USA, the British Parliament is allowed to infringe the Act.43 While advocates of legal rights demand provision of rights in the form of charter or bill of rights, the supporters of common law rights (such as A. V. Dicey, K. C. Wheare, Ivor Jennings, etc.) feel that it may not matter much.
Exponents of legal rights
Theory of legal rights has been mainly associated with Thomas Hobbes, Jeremy Bentham and John Austin. Hobbes started with the conception of natural rights as provided in the state of nature and came to the conclusion that a central authority in the commonwealth, the sovereign or the Leviathan, must protect the most fundamental natural right, right to life or self-preservation. However, to do so, the sovereign becomes the sole source of all other rights. Individual cannot claim rights other than right to life and self-preservation against the sovereign. For Hobbes, law is what the sovereign commands and rights emerge from the command of the sovereign. Wayper says, the ‘Leviathan is the creator of Right and Justice.’44 However, as Wayper says, Hobbes does admit the right to contract, trade, profession and thought. He also admits right to property but, as Sabine says, he maintains that ‘property may be a natural right but the civil law defines property.’45 He does not admit any right to associations that exist within the commonwealth, as they are ‘worm in the body politic’, a danger to the monolithic sovereignty. By advocating supremacy of legal sovereignty and law as the source of right, justice and liberty in the state, Hobbes germinated the theory of legal rights.
However, Jeremy Bentham, who vehemently opposed the doctrine of social contract as a fiction never entered into and the theory of natural rights as rhetorical nonsense, developed the theory of legal rights as part of his utilitarian philosophy. Dicey has called Bentham as ‘the first and the greatest of legal philosophers’, and in Bentham then, we seek the grounds of legal rights. Bentham's opposition to natural rights emerges from his rejection of the law of nature in favour of positive law. If he does not admit the law of nature, then there is no possibility of natural rights. Unlike Locke, Paine and Green, Bentham accepts only positive law as the source of rights. Law for him is the command of the sovereign and he does not accept ‘natural rights opposed to, in contradiction to legal’.46 Bentham was also opposed to natural rights because, as Norman P. Barry says that there is no correlation between rights and duties. Rights to be correlated with duties require sanctions for failure to perform an action and natural rights do not carry correlated duties. Further, he also felt that the doctrine of social contract combined with that of law of nature and theory of natural rights led to inference that all other governments having any other origin are illegal and can be resisted against.47 Bentham, by rejecting natural law and natural rights, prepared the ground for legal rights. For Bentham, it was not the maintenance of rights that was crucial but the realization of the utilitarian principle of greatest happiness of the greatest number. This could be possible when laws are prescribed for this.
Two of his books, Fragment on Government and Introduction to the Principles of Morals and Legislation are famous and contain his exposition on government, representation, utilitarian principle and principles of legislation. The latter is greatest happiness of the greatest number. Combining his legalist view with the utilitarian principle, Bentham would treat the right of one person as his/her freedom of action, which is guaranteed by a penalty for preventing another person from invading it. This limitation can be justified only by the relative utility in comparison with what would have happened if they were on their own.48 Thus, claims for rights are to be judged on the utilitarian principle. To ensure the greatest happiness of the greatest number, both rights and duties are required. This, in turn, requires legal rights and not natural rights. For Bentham, rights ‘properly so called, are the creatures of law properly so called; real laws give birth to real rights’.49 Bentham admits no right without law or contrary to it or anterior to law.
Having rejected the theory of natural rights and established a legal basis of rights, Bentham admits right to security. On the basis of the need for security to the individuals, he justifies property rights. Security of property is a major condition of achieving greatest happiness. Though rights cannot be maintained against the State, Bentham ‘justifies opposition to the State if that opposition will produce less pain than continued obedience.’50 In fact, Bentham to some extent allows the same rights that the advocates of natural right demand. Right to property and resistance to the State, in essence amounts to the same thing.
John Austin in his The Province of Jurisprudence Determined (1832) has propounded the theory of legal sovereignty and positive law. Sovereign, being the sole source of law, also becomes the source of rights. Legal rights imply relative duty for another person or group of persons. This requires enforcement of the right by enforcing the relative duty. Austin, like Bentham, also sees rights of one as correlated with duties of another and this requires enforcing duty by sanction.
Professor D. G. Ritchie, in his book Natural Rights, has attacked the theory of natural rights. He has stressed on the importance of and need for correlation between rights and enforceable duties or obligations. He defines legal right as ‘the claim of one individual upon others recognized by the state.51 Legal theory of rights is based on recognized rights, which are enforceable.
Critical evaluation
Legal theory of right is based on the concept positive law, law enacted by sovereign authority. Rights are created and enforced by law; they are an artificial creation of the State. However, it is argued that if law is the sole creator of rights, then it should also be able to ‘make corruption a right’ to cite Professor Hocking's phrase. This reinforces the point of view that law does not create rights but only recognizes, protects and maintains them and it cannot declare any practice as right. This means something more goes in creation and recognition of rights than merely the state's law. Law as the creator and recognizer of rights depends on various grounds such as human, moral, social, etc. Debate between jurists and Duguit and Krabbe on the content of law has been dealt with in the chapter on sovereignty. Suffice here is to say that law generally recognizes claims of individuals and groups with corresponding duties and presents them as rights. It is in this sense that the description of Wesley Hohfeld of legal rights in terms of a claim right, where one person asserts that s/he has claim on another is relevant. A claim right imposes mutual or corresponding duties or obligations. My right to privacy requires others to uphold that; my right to movement requires that others do not obstruct me, etc.
However, Laski raises a pertinent question, whether the rights there (in the state) recognized are the rights which need recognition.’52 Through this, Laski seeks to bring in a yardstick of evaluation of legal rights. Legal rights are to be compared with a corpus of rights to know whether the rights maintained by a state are the rights that human beings need. This essentially requires conception of ideal rights, rights that are ideally required for development of the human personality. Laski's remarks that ‘a state is known by the rights it maintains’ is in the context of legal versus ideal rights. It appears then that mere recognized and enforced rights, which the theory of legal rights aims at, may not be the solution for achieving end of human development through rights.
Bentham recognized the utilitarian principle to evaluate the necessity and requirements of legal rights. But Bentham's utility principle leaves room for ignoring rights of a particular individual if they conflict with maximizing utility of society as a whole. For example, will it be morally acceptable to kill a few members of religious or linguistic minority if it maximizes the utility of religious or linguistic majority as whole in terms of emotional satisfaction?
Barker maintains that the state and its law could be only one source of right, the other being individual personality. He opines that in actual practice, it may not be possible that both the sources work simultaneously. Barker calls such a right as ‘quasi-right’.53 This suggests that there is need to bring correlation between legal and ideal rights.
Notwithstanding the possible gap between the legal and ideal rights, the fact that rights must be recognized if they have to be enforced cannot be discounted. In fact, J. S. Mill in On Liberty mentions that demand for recognition of certain immunities or rights was aimed at setting limits to the power of rulers that could be exercised over the community; the breach of which could lead to specific resistance or general rebellion.54 Bill of Rights or Fundamental Rights are the immunities that are legally provided to the citizens and, in fact, are a check on the authority of the state. Ironically, in terms of legal rights, sovereignty of the state creates and recognizes rights that are a check on its own actions; creation a check on the creator.
To discuss the concern expressed by Laski and Barker in terms of legal versus ideal rights, we now turn to a discussion on ideal and moral rights.
Theory of Moral–Ideal Rights
Along with natural rights, moral entitlements were also stressed as the basis for legal recognition. Moral entitlement as the basis of rights came into the picture initially in the writings of Jean Jacques Rousseau, Immanuel Kant and Thomas Hill Green in eighteenth century and has appeared in the writings of Harold Joseph Laski and Ernest Barker in the twentieth century. Recently, Richard Dworkin has discussed rights as moral entitlement. For Dworkin, a right entails moral claims as right in one's own capacity and also requires others to be duty bound to respect it.55
Theory of moral or ideal rights is concerned not only with the source but also the content of rights. Theory of legal rights is concerned with source of rights, law enacted by the State. It is not concerned with what moral or ideal principles constitute rights. We may recall Laski's poser, whether legal rights are what human beings require as rights. There may be possible gaps in what rights a person should have and what have been enacted as legal rights. Heywood explains, ‘moral rights are more commonly ‘ideal’ rights, which bestow upon a person a benefit that they need or deserve.’56
It is this concern for content of right that is the main focus of moral or ideal rights. For example, a marriage act and civil courts may recognize certain conditions under which a marriage becomes null and void or entitles the claimant the right to seek divorce. However, it does not mention, for example, ‘rape within wedlock’ as either in the category of violence or condition for seeking divorce. Advocates of moral or ideal rights may argue that this moral right should be recognized legally.
In brief, the theory of moral or ideal rights has insisted on moral freedom of individual (Kant) or real will of the individual (Rousseau) or human or social consciousness and self-realization (Green) or development and perfection of human personality (Laski and Barker) or dignity of human being (UN Universal Declaration of Human Rights) as grounds for ensuring rights of the individual.
Immanuel Kant, a German idealist philosopher, made morality as one of the central themes of his thought. He argued that ‘to achieve perfection in yourself and happiness in others, “so act as to treat humanity, whether in thine own person or in that of another, in every case as an end, never only as means”.’57 This compulsion, to treat oneself and others as ends and never only as means, is aimed at creating ‘ideal community of rational beings. However, how does one achieve the end of installing morality at the centre stage of human actions? Kant's answer is, as Durant says, by ‘freedom of our wills. And how does one realize the freedom of wills? Kant would say that freedom is ‘the very essence of our inner selves’ and would entail a sense of duty. How does this happen? Kant invoked the idea of moral sense to prove his point. In his book, Practical Reason, Kant writes, ‘while I can will the lie, I can by no means will that lying should be a universal law.’58 Kant uses the term ‘will’ in the sense of willing against the inner compulsion, or moral sense. While I will the lie, there is an inescapable feeling that something is wrong. Where does this feeling come from; how do we get the feeling of remorse, repentance, and self-denigration when even no one else knows about our lies? This feeling is moral sense, inner voice or ‘moral choice’. Does this not lead to the conclusion that I must not lie even in the absence of a law against lying? Should not I follow honesty for its own sake even if it is to my disadvantage, rather than when it is a best policy? While following honesty unconditionally is morality, following it conditionally, when it is a best policy, is prudence. When Kant talks of moral freedom, he means unconditional pursuit of morality.
If Kantian moral freedom is the basis of rational community, Kant necessarily requires development of moral freedom amongst the humans. However, this is a freedom that cannot be granted by the State, rather individuals themselves can only achieve it. The State, however, can provide external requirements for the development of this moral freedom. Rights must then be the conditions for moral freedom. Ideal rights are in fact associated with duties and obligations to treat own person and others as ends and never only as means. Thus, Kant links rights with moral end and moral freedom.
Jean Jacques Rousseau, French philosopher, advocated that one should be forced to be free. This means rights have to be seen in the context of social freedom reflected in General Will. Rousseau's conception of General Will is based on the differentiation he makes between an individual's ‘real will’ and ‘actual will’. He maintains that individuals in the state of nature are consciousness of common good and would subordinate their self-interest and this is reflection of ‘real will’, though self-interest, i.e., ‘actual will’ is also present. Actual will is reflected in impulsive, instinctive and un-reflected self-interest. Rousseau feels that it is the triumph of ‘real will’ over the ‘actual will’ that makes emergence of General Will, as overarching consciousness of social community, possible. Implication of Rousseau's formulation of doctrine of General Will is that individual should always let their real will triumph. In this sense, the actual will is forced to be guided by the general or the real will, it has been forced to be free.
If this is to happen, they require moral and social conditions. In civil society, rights are conditions of moral and social development. For Rousseau rights are ideal rights that fulfil the condition of subjecting the actual will to the general will, at the same time retaining the former. Inherent in this is the fact that Rousseau considered human beings as an end and not an instrument of others. This is reflected in his renunciation of Aristotle's defence of slavery as ‘men can only be slaves by nature if they have first been made slaves against nature.’59 Rousseau's claim for ideal rights is aimed at justifying that rights cannot be based on external criteria but what emerges from the will of the individual.
T. H. Green, the English idealist thinker, understands right as a power of acting for his own ends … secured to an individual by the community on the supposition that it contributes to the good of the community. He sees right as power, as capacity or empowerment to act for certain ends that individual seeks. This is the moral claim of an individual and this moral claim must be recognized and accepted. Self-realization and self-fulfilment of moral nature of human beings is the primary concern. Moral claims of men ought to be recognized as rights, if man is to fulfil his moral character. Green's conception of rights, as explained by Barker, is reflected in the sequence: ‘human consciousness postulates liberty, liberty involves rights, and rights demand the State.’ Green makes ideal demands of moral development of human personality as the basis of state's recognition of rights. Rights must provide external social and community based conditions for moral freedom of man. In Green's scheme of things, consciousness of the community is the basis of rights and ‘the State alone is the source of rights’. In brief, Green says that individuals have moral claims based on requirement of self-consciousness and self-perfection; these claims should be recognized by the community as part of the common good; and these must be reflected in the recognition of the state as rights.
Harold Joseph Laski supports claims for the right on the basis of ‘fulfillment of the social purpose of human personality’. This is the basis for constructing ideal rights against which the performance of states in maintaining rights can be judged. In his A Grammar of Politics, Laski says, ‘Rights, in fact, are those conditions of social life without which no man can seek, in general, to be himself at his best.’60 The criterion, ‘to be himself at his best’, constitutes a claim for moral or ideal social conditions and these can be ensured only when rights are provided for. Laski argues for the moral and ideal foundations of rights. Further, he grounds moral and ideal rights in the wider public and social character of rights. He says ‘I cannot have rights against the public welfare, which is intimately and inseparably associated with my own.’61 This means rights and duties are inseparable and are conditions of common welfare and enjoyment of rights.
Laski in his A Grammar of Politics has categorized rights into two categories: general and particular rights. In the category of particular rights he includes right to work, right to adequate wages, right to reasonable hours of work, right to participate in management, right to education, right to political power, right to freedom of speech and expression, right to freedom of association and public meetings, and limited right to property.
Ernest Barker, in his Principles of Social and Political Theory describes rights as secured and guaranteed conditions of development of the capacities of personality. However, rights to be distributed amongst the people require certain principles of distribution, which he calls the principle of distributive justice. According to Barker, there are three such principles—liberty, equality and fraternity—which are ‘principles of distributive justice.’ Rights based on principle of liberty are those rights which the state confers on the consideration that each person is a free moral agent and capable of exercising and enjoying rights. Right based on equality principle means right of equality as legal person; for example, right of equality in matters of justice, taxation, offices of public employment. However, for effective legal equality Barker suggests achievement of equality of personal capacity such as education, economic resources and social position. He invokes the principle of fraternity to argue for those rights, which provide common equipment—material and mental, and are necessary as common background and basis for individual lives. Barkes would like to include, right to education, right to public assistance, right to facilities such as library, roads, etc., in this category. He treats distributive justice as the primary social and political value grounded on the moral value of personality and the development of its capacities.
Thus, in organizing political society and in distributing values such as rights, liberty, equality and justice, Barker would like that criterion of ‘the moral personality acting and developing its capacities’ should be used as the ‘supreme value’. He admits that there could be two sources from which rights will be derived: (i) the source of individual personality as condition of its development, and (ii) the source of the State and its law as secured and guaranteed by the action of that law. The idea behind differentiating two sources of right by Barker is to show that rights derived from only one of the sources can at best be termed as ‘quasi-rights’.62 He would like that the recognition and distribution of rights follow the principle of distributive justice.
R. Dworkin in his book Taking Rights Seriously has also defended rights as moral entitlement. According to his view, ‘the status of a right therefore entails that a person is both entitled to stand on his own right and to require others to be duty bound to respect it.’63 Thus, moral claim of the individual also entails moral obligation on the part of others. In fact, the idea that rights are possessed by human beings by virtue of their being human, leads Dworkin to argue that ‘the state owes duties to treat its citizens with equal concern and respect.’64 Dworkin would like the state to provide rights that respect the personality of each and is based on their inherent dignity.
Critical evaluation
While theories of natural and legal rights broadly fall within the liberal framework, theory of moral or ideal rights combines the liberal as well as the idealist framework. While it brings moral and ideal criteria for judging the content of rights, it considers individual as the unit for moral and ideal rights. Kant, Rousseau, Green, Laski, Barker, and Dworkin, except Green's idea of social consciousness, emphase individual development as the primary concern. As such, it is within the ideal-liberal framework.
Theory of moral or ideal rights has been criticized for being ‘impossibly vague and degenerates into little more than an expression of what is morally desirable.’ In fact, Bentham had rejected the idea of moral rights because he believed that it was a mistaken way of describing legal rights.65 It may also be argued that the criteria of moral development and development of personality of individuals has two problems: (i) the criteria is subjective and abstract and it would be difficult to list the rights that would be necessary for this purpose, and (ii) by focusing both on individual aspects of moral development and the social and community requirements, it is not very clear as to which gets priority. For example, in Kant's scheme of things, it is not clear whether rational community would facilitate conditions of individual's moral freedom or the latter would be basis of a it. Similarly, for Green, whether the moral claims of an individual gets priority for recognition by community or they are subject to requirement of a common good is not clear. In the case of Rousseau, if individual's real will on its own can lead to emergence of General Will, as it does, then where is the need to force some one to be free.
However, two aspects of moral or ideal rights are noteworthy. Firstly, it sees rights of an individual in terms of social context and links individual personality with social requirements. Secondly, it invokes the criterion of inherent personality as claim for rights. The criterion of personality arguably could be acceptable as it is not historically limited and can be applied as a ground of rights irrespective of times. It is also relevant to the human rights debate.
Theory of Historical Rights
Historical rights are based on tradition, usages and customs; they are customary and traditional rights. The claims for the right are based on historical, sociological and evolutionary grounds. Being based on customs, traditions and customs, historical rights pertain not only to the claims of the individuals but also to groups and communities. In short, rights are crystallization of customs and traditions and as such they could be treated as repository of accumulated wisdom. The theory of historical rights does not exclude changes and supports incremental and evolutionary changes that come with the changing requirements of individuals and communities.
The theory of historical rights is inseparably linked with the argument that evolution of law is based on customs and traditions. According to historical jurists and sociologists such as Maine, MacIver and others, laws are derived from customs, usages and conventions. Rights are historically evolved and are part of customs. Theory of historical rights is against rights, which lead to radical or revolutionary rearrangement of social and political structures. Due to these characteristics of historical rights, it found its eloquent support in Edmund Burke. Burke renounced the French Revolution and the Declaration of Rights of Man and Citizen as destabilizing and socially harmful. Beside Burke, social historian Henry Maine, sociologists R. M. MacIver, jurists J. W. Burgess and F. K. Savigny have supported the concept of historical rights.
Henry Maine and R. M. MacIver maintain that laws have historical character and are based on customs, traditions and usages; so is the character of rights. Rights emanate from customary laws and conventional claims. Henry Maine (Early History of Institutions) criticizes jurists for advocating law as the creation of sovereign or determinate authority only. As per jurists, only those laws that are codified by the state stand the status of true law. For supporters of historical rights, law emanates from customary, religious and traditional sources. According to Maine, there has been no determinate authority that could claim to be the sole source of laws and creator of rights. He supported the evolutionary nature of social and political institutions, including law and rights. Customs and traditions have always influenced sovereign authorities.
MacIver stressed on the role of customs in creating rights of the people. He supports the sociological school of jurisprudence and maintains that law does not originate from any person or designated authority in the state, it has its source in social customs, traditions and conventions. This implies that even if law means codified law, it is generally based on customary rights and traditional claims. The state gives expression to law, which means that the state is source of legal enactment and gives formal expression to particular law; it is not the source of law itself. In his words, ‘the social law is expressed in custom, tradition, the thousand forms of use and wont. Part of this in turn is reinforced, reaffirmed, and enlarged as the law of the state.’66 Accordingly, those rights are recognized and enforced which flow from social and cultural conventions and customs.
Edmund Burke, who denounced the French Revolution and the social and political upheaval it led to, tried to project the reactions against it and also against the liberal tenets it was based on. This reaction is known as conservatism and Burke's Reflections on the Revolution in France is considered the main advocacy of conservatism.
In 1789, The French Declaration of Man and Citizen, reflected triumph of liberal philosophy and conception of natural rights of equality, liberty, security and property. This was a blow to the old order represented by the aristocracy, the first estate and the clergy, the second estate. However, the French Revolution was followed by some kind of hostility from the dethroned classes and the similar interests in the French society. To ward off the hostility against the Revolution, a group of newly emerged revolutionists and militant section within the third estate, known as the Jacobins, sought to put down those who were perceived as the opponents. Their leader, Maximilien Francois Robespierre, declared himself as a champion of the Rights of Man and became leader of the left in the Constituent Assembly and the Jacobin club. In 1792, he demanded that ‘Louis must perish because our country must live’ and asked for the king's execution without trial.67 It is said that under Robespierre, France was gripped under the ‘tyranny of the Jacobins’ and though he was eliminated, ‘the revolution failed to return to its original ideals.’68 Ultimately, Napoleon Bonaparte's dictatorship scripted the end of the era of ideals that the French Revolution ignited. Burke's reaction in a way was against the Jacobin ‘excesses’ and a justification that radical claims for rights could be destructive of social order. Burke supported evolutionary rights. He praised the evolutionary nature of the demands in the Glorious Revolution of 1688 in England.
Tom Paine attacked the English Revolution and Burke's criticism of the French Revolution. Paine supported the French Revolution by saying that only a republican constitution can secure the rights of man and the same was not possible under the English monarchy. Paine was tried for treason and found guilty though he escaped England. Burke, on the other hand, praised the evolutionary nature of rights that culminated in the English Revolution. He thought that the Glorious Revolution was culmination of the customary rights of the English people, which has found expressions in earlier demands and charters such as the Magna Carta (1215), the Petition of Rights (1628).
Magna Carta was a charter, which granted certain civil and political liberties to the barons and free citizens in England. King John at Runnymede signed it on 15 June 1215 on the insistence of the barons. Its provisions were that no man should be punished without fair trial, that ancient liberties generally should be preserved, and that no demands should be made by an overlord to his vassal (other than those recognized) without the sanction of the great council. In 1628, the Commons gave the Petition of Rights to Charles I. These two documents represent evolutionary demands of rights and were not radical either in their demands or way they were sought to be achieved. Unlike the radical and revolutionary method that manifested during the French Revolution, Burke feels that the English Revolution reflected evolutionary and historically evolved rights. Burke's support for evolutionary and customary rights is part of his defence of conservative philosophy and his doctrine of prescription. Burke's doctrine of prescription maintains that one should always have a presumption in favour of the established institution, law and practices. This is because they are ‘entailed inheritance’ and ‘embody collective wisdom of past generations’.69 As such, customary law, established customs, old practices and institutions should not be disturbed. The English ‘common law’ tradition is very much a reflection of basic customs evolved there. In fact, writers and commentators such as A. V. Dicey, Benjamin Constant, Ivor Jennings, K. C. Wheare and others have supported ‘common law’ rights over a Bill of Rights.
It may not be inappropriate to mention here that during the fifteenth century when the controversy between respective claims of papacy and royalist was on, there emerged resistance against the papal sovereignty within the church. It was argued that ‘the Bishops and the Popes held authority as the officers of the Church’ and power resided in the church and not in the pope or bishops. This was based on the premise that the community constituting the church ‘must be capable of governing itself and that its consent is vital to any kind of lawful authority.’70 This was a theory to assert the rights of the people to have their consent and constitutional government in the affairs of the church. This is known as the conciliar theory and one of its advocates was William of Occam. The conciliar theory provided support to the assertion of rights of the people to consent, which, as Sabine says, ‘might apply indifferently to a church or state …’71
Critical evaluation
Theory of historical rights denounces claims of natural right theorists and also the legal right theorists and gives primacy to customary and traditional laws and rights. It claims that neither natural law nor the State can be a source of rights. The State at most gives effect to some of the rights, which are historically and traditionally available. It favours a doctrine of rights that could be available to individuals and also communities. Theory of natural rights is primarily a theory of individual rights. Theory of legal rights may admit rights of both individuals and groups, as the concept of juristic personality would apply to both. However, theory of historical rights may not be acceptable in entirety. Some of the customary laws and practices that provide ground for rights, e.g. civil and social rights such as to marry in one's caste or religion or male right to inherit ancestral property, etc., are less controversial. But consider some of the traditions and customs that either clash with the basic tenets of human dignity or are against gender equality. For example, Aristotle's justification of slavery based on tradition; the practice of untouchability in India (practice of caste/group exclusion from or discrimination against social, civic, religious and cultural intercourse by others); the practice of Sati (practice of widow immolating on deceased husband's pyre), no coparcener right for women in inheritance, absence of right of widow-remarriage, etc. are harmful and unacceptable customs. In fact, during the British period through social legislation many reforms were introduced for abolition or removal of those customs and practices that were against the tenets of human dignity or individual self-respect. Post-independence constitutional and statutory provisions have heralded a new a era of social reform and social legislation that have provided safeguard against socially harmful customs. History has generally been a double-edged sword, it could be a guide but equally misleading.
Any claim merely on what has evolved tends to forget one crucial aspect—how these practices and customs have come to be what they are. It does not take into account the power relations or relation of dominance and subjection where a particular practice benefited some and harmed others. The theory tends to become a justification of status quo and may provide functionalist justification (that everything that exists or survives has some useful function).
Theory of Social-Welfare Rights
The theory of social welfare rights holds that rights should be the conditions of social welfare. As such, the claim for rights must be based on consideration of welfare, justice, equality and common good. While theory of natural rights is associated with liberal tradition, theory of legal rights with juristic traditions, theory of moral–ideal rights with idealist tradition and theory of historical rights with conservative traditions, theory of social welfare rights may be associated with positive liberalism and democratic–welfare ideas. Does it require rights of individuals for their development or does it seek rights as part of a common whole where individual shares rights in terms of a common minimum denominator?
Tenets of social welfare rights could be found in the writings of utilitarian theorist Bentham, positive liberals Hobhouse, Barker, Tawney, social democrat Laski and some recent writers such as Roscoe Pound and Chafee.
Bentham's utilitarian principle, ‘greatest happiness of the greatest number’, as criterion of common good, is also a basis for rights. Claims for rights as per greatest happiness of the greatest number entails duties as well. The principle of greatest happiness of greatest number implies that rights are to be adjusted to the requirement of social or at least majoritarian welfare. Social welfare and general betterment in terms of happiness (because naturally all individuals tend to seek happiness and reject pain) is condition for rights. Any claim for right that does not conform to or is against social welfare/common good is not recognized by society. Two things are implied in this—one, that rights must have a socially recognized base, and second, that there must be corresponding duties for the rights provided. Rights are not based on the conception of the individual as separate or atomized entity. It gives primacy to socially useful conditions that individuals enjoy in the interest of common good.
Common good or general welfare may be understood as what Rousseaus General Will criteri on or Bentham's greatest happiness of the greatest number criterion or Barker's fraternity criterion, or Chafee's balance of interest criterion would imply. Rousseau's general will admit those rights, which are subsumed under the requirements of civil society, the General Will. Bentham's principle requires rights that are based on the greatest happiness of the greatest number. Chafee's principle implies that rights should be socially expedient and ‘determined by the balance of interests under the prevailing social conditions’.72 Barker's fraternity principle of distribution of rights involves distribution of common equipment—material and mental (road, library, education, etc.) for common enjoyment.
Laski is considered a very ardent supporter of the theory of social welfare rights. He used the principle of utility and public welfare as the basis for supporting the claim of rights of individual. Laski defines rights as ‘those conditions of social life without which no man can seek, in general, to be his best.’ This means, rights are socially linked conditions that help realization of individual's best self. Socially linked conditions mean claims, which are admissible to each but are relative to the others. He elaborates this when he says, ‘in any state the demands of each citizen for the fulfillment of his best self must be taken as of equal worth; and the utility of a rights is, therefore, its value to all the members of the State.’73 Laski is of the view that rights of the individual should not be against public welfare precisely because public welfare subsumes individual's welfare as well. This requires maintaining a social condition in which the best self is realized and also individuals subordinate their self-interest to public welfare.
Laski also argues from the perspective of equal distribution of opportunities and absence of privileges. He was apprehensive that concentration of economic privileges and opportunities in the hands of a few people, as could be the case in capitalist economy, would be inimical to equal claim of all. He favoured a condition in which benefits resulting from the exercise of power of the state should be equally accessible to all. In his State in Theory and Practice, he says, ‘The state … must postulate the equal claim of its citizens to the benefits which accrue from its exercise of power …’74 There should not be principles that exclude a group of individuals from enjoyment of certain rights. For example, Laski would agree that one should not be so privileged to purchase some one and the other should not be so deprived to sell oneself. He gives the most eloquent expression of equal rights when he says ‘…in any adequate view of citizenship a State which refuses to me a thing it declares essential to the well-being of another is making me than a citizen.’75
Critical evaluation
Any right that is in consonance with public welfare is reasonable. Public welfare subsumes the welfare of each individual as well. From this perspective, social welfare seems to be an appropriate ground for claiming rights. But then, we are faced with a problem. How do we determine public welfare? If Bentham's thesis of greatest happiness of greatest number is taken as the yardstick, is it not that we would miss the interests and claims of at least a few individuals for the interests of a majority or the greatest number? In a given capitalist society, what assurance is there that claims and interests of the propertied class would not be treated as equivalent to public welfare? By admitting public welfare as the ground for rights, one would admit that the societal, political and economic processes are neutral and would allow general welfare to be served. This is to ignore unequal distribution of power. In fact, social-welfare is a concept that is meant to mitigate through incremental changes the consequences of the unequal distribution of power.
In a society that not only has class difference but also caste, religious and ethnic differences, for example India, how could a working definition of public welfare be devised? A policy orientation by the state tilted towards one or the other may be criticized as either ‘majoritarian’ or as some would call, ‘minoritism’. A country where ‘poverty line’ itself is layered, how would we define social welfare? To deal with this, various specific rights for minorities, women, socially backward castes, cultural communities have been provided along with general rights.
The merit of the theory of social welfare lies in accepting that rights are not to be granted to a self-contained and atomized individual but to the one who is part of the social whole and whose rights are relative to the rights of others. It provides basis for socially coordinated claims so that adverse impact of unequal distribution of power in society could be mitigated. The significance of this approach is in areas of social reform and social legislation including policies for positive discrimination by the State. Policy of positive discrimination and social justice in favour of socially disadvantaged groups and women for their ‘empowerment’ is reflection of their claim for relative adjustment of rights of others. It is possible that ground for social welfare may emerge from the very claims, which have roots in terms of human dignity and self-respect (human and moral rights), economic inequality, gender inequality, social discrimination, etc.
Theory of Human Rights
The International Covenant on Civil and Political Rights, 1966 states that human rights derive from the inherent dignity of the human person.76 Human rights are considered by most societies to belonging automatically to everyone; as if they are given as part of human life. This may include freedom, justice, equality, life with dignity, etc. Does this mean that human rights are rights that inhere in the very existence of human being and that too universally, irrespective of specific cultural and social values? Are human rights general rights, which subsume all other specific rights? These questions relate to the content of human rights. Human rights, at times, have been argued on the basis of natural rights and some other on the basis of ideal and moral rights. However, it is generally agreed that human rights have implication for legal process. The interpretation of existing laws and statutes must take into account human rights requirements.
The United Nations Universal Human Rights Declaration, 1948 provides a general framework for Human Rights acts that many countries have adopted. For example, UK follows the common law rights but has adopted the Human Rights Act in 1998. However, before we take up the issue related to content of human rights, whether they are universal or culturally specific; claimants of human rights vis-à-vis individuals or groups such as women, etc. let us trace the root of the doctrine of human rights.
Grounds of human rights
It is understood that the human rights trace their root from the natural rights. Andrew Heywood maintains that ‘the idea of human rights developed out of the ‘‘natural rights’’ theories …’77 Natural rights such as right to ‘life, liberty and property’ (Locke) or right to ‘life, liberty and pursuit of happiness’ (Thomas Jefferson, American Declaration of Independence) or right of ‘equality, liberty, security and property’ (French Declaration of Man and Citizen) right to ‘liberty, property and security’ (Thomas Paine) are considered as reflections of the fundamental inner human drive and basic conditions for leading a truly human existence. To this extent, these are rights of individuals as human beings that claimed recognition from political authority. They were also aimed at setting up limits on external interference on the actions of the individuals. Heywood maintains that due to secularization of natural rights theories in twentieth century, these rights were ‘reborn in the form of ‘human’ rights.’ In this way, human rights are treated as extension of natural rights and are claims of individuals by virtue of being human being.
These rights are universal claims of each individual irrespective of gender, caste, class, race, religion and cultures. The tenets of Universal Declaration of Human Rights [1948] that declares recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family and International Covenant on Civil and Political Rights [1966] that declares inherent dignity of the human person support this view. As such, it tends to view human rights as inalienable rights emerging from human existence and the very dignity of human beings.
R. Dworkin (Taking Rights Seriously) upholds right as moral entitlements. This implies that ‘a person is both entitled to stand on his own right and to require others to be duty bound to respect it.’78 For example, if a person seeks privacy, s/he has right to privacy and also that others are duty bound to respect. Dworkin's idea of right as moral entitlement seeks to confer entitlement. One of the types of entitlement Hohfeld identifies is claim right, where one person asserts that s/he has a claim on another. He also identifies liberty right, right as power and immunity, which we have discussed above. Robert Nozick (Anarchy, State and Utopia) who argues from the perspective of natural rights and libertarian position maintains that one must not violate the right of others because an individual has exclusive rights in himself/herself and no rights in anyone else. This, in essence, means an individual has rights of ‘liberty and property’.79 He uses this argument against the interference by the State in the actions and pursuits of the individuals. These theoretical positions are based on claim for rights of individuals on the basis of moral claims. Tom Paine and Thomas Hill Green also argued that certain claims for their self-development and moral realization inhere in a human being and these claims must be recognized as rights. Relevance and existence of the claim for rights on the basis of moral entitlements is not dependent upon the recognition of the majority in a democracy. Dworkin argues that moral rights should not defer to the will of the majority.
Consequences of human rights arguments
It appears that human rights are treated as part of natural rights or moral entitlements that inhere in the very existence of human beings, right from the stage of conceiving to death. Arguments with respect to the scope of the human right have, for example, included right of an unborn child and right of a perennially sick old person or incurably challenged person to ‘mercy killing’. While the first is related to the controversy on practices of gender determination and abortion, the second involves right to end human suffering of a human being.
The right of an unborn child should be treated in the same manner as Aristotle treats the nature of a seed. Nature of a seed is what it would attain when fully grown—purpose or end that a seed is to grow into a plant. Similarly, nature of an unborn child is what it would be when born and allowed to grow, a human being. There is yet another angle that comes in the picture while the issue of right of unborn child is dealt with. In countries such as India, abortion is also related to gender discrimination; abortion when a girl child is detected. As such, the human right argument of an unborn child is not neutral but related to the women right; right of women not to be discriminated. It is also important to note that women rights activists and supporters argue that rights that inhere in human beings has generally male orientation or at least male as the main focus.
H. A. L. Hart has maintained that ‘human rights are general rights rather than specific rights: they are universal to all humanity.’80 As a result of such arguments, two consequences follow. Firstly, there has been claim for universal human rights irrespective of cultures and values, and secondly, various conventional rights, which fall under the economic, civil and political rights, have been given effect or are claimed for giving effect in the context of human rights. In fact, Universal Declaration of Human Rights recognizes economic, social and cultural and also political and civil rights as part of human rights. The human rights perspective necessarily requires celebrating humanity in each individual as an end. As a result, slavery, untouchability, apartheid and a lot of other forms of exclusions and discriminations that engenders inequality and exploitation in society came present a picture of humanity deficit.
Having travelled its journey a long way and having been recognized as the contemporary avatar of rights, human rights have been used to argue for protection against violation of the rights of prisoners, war criminals, under trials, right activists, protestors, political opponents, asylum seekers, migrants, refugees, displaced people, minorities, women and unborn child and even terrorists. This apparently goes to prove that human rights do not only encompass individual rights but also rights of groups, nationalities, gender, peoples, etc.
Content and scope of human rights
Human rights include various types of rights, ranging from liberal or ‘bourgeois’ rights to social and economic rights to cultural and religious and also civil and political rights. Chris Brown has identified three generations of rights as part of evolution of content of human rights.81 These are:
- First Generation Rights: Internationally available law and declarations initially concentrated on rights such as freedom of speech, and assembly, the right to take part in the government of the country, directly or through the chosen representatives, etc. The Universal Declaration, 1948 focused on such rights, which are civil and political in nature. These rights have been considered essential from the perspective of an open and democratic society. Article 21 of the UN Universal Declaration spells this out.
- Second Generation Rights: Second generation rights have been generally identified with rights, which are in the nature of economic, social and cultural rights that are thought to be indispensable for dignity and development of personality of members of human society. Article 22 of the UN Universal Declaration spells this out and these rights also feature in the International Covenant on Economic, Social and Cultural Rights. It has also been argued that ‘appearance of social and economic rights in human rights instruments can probably be traced back to the International Labour Organization.’82 Influence and proposals of the International Labour Organiszation (ILO) to include full employment as commitment of member states could be seen in Article 22 to 28 in the Universal Declaration, 1948. These Articles provide for right to social security, right to work, right to rest and leisure, right to adequate standard of living, right to education and participate in cultural life appearing
- Third Generation of Rights: While the first and the second generation rights mainly focus on individual as the concern, third generation rights concentrate on collective dimension and take the concerns of ‘peoples’. Particularly, the African Charter of Human and People's Rights, 1981 provides that ‘peoples have the right to “freely dispose of their wealth and natural resources”, serve natural community, preserve and strengthen African cultural values.’83
Human rights appear to contain three generation of rights—civil and political rights; social, economic and cultural rights; and collective or peoples’ rights. The first generation of rights are influenced by natural rights and liberal theories, the second generation of rights by the positive liberal and socialist theories and the third generation of rights are influenced by the collective, national or pan national identities, e.g. African identity, etc. While the first generation rights are largely conducive to the promotion of democratic values, the second generation rights are social democratic and welfare concerns and the third generation rights are for communitarian rights.
Debate on ‘universal’ versus ‘value specific’ rights and its implications
Insistence on universality of the contents of human rights and their being applicable to all, irrespective of social, cultural and religious context, has led to controversy. Firstly, the evolution of human rights in terms of content has led to the debate on values and culture specific rights versus universal rights. Secondly, there may be contradiction between first and the second generation rights or between these two and the third generation rights. Thirdly, gender bias of assumptions of human rights has also been pointed out by the feminist activists.
The universality of human rights has been questioned or has come in controversy on different counts. Some of the rights incorporated in the Universal Declaration, for example, ‘freedom to change and practice the religion of one's choice’ [Article 18] generated controversy. Some countries such as Saudi Arabia objected to this particular provision on the ground that this contravened not only the national law of Saudi Arabia but also the tenet of Islam.84 Though it can be argued that religion being a matter of conscience and faith and also given the multi-religious nature of contemporary societies, the right incorporated in the Universal Declaration appears reasonable. However, operation of this right has been a matter of controversy in India also. A section of people have argued that ‘freedom to change and practise the religion of one's choice’ has led to ‘forcible’ and ‘manipulative’ instances of religious conversions. This issue has at times led to communal tensions in India. Certain human rights, which appear universal, may at times be a matter of controversy and tension in societies.
A second argument deals with disjunction between universal standards and culturally specific values that determines rights. Cultural relativism has been invoked to support the argument of rights based on specific values. There have been criticisms of universalistic claims of human rights that have Western liberal imprint against the cultural particularity of rights and the values of other societies. Of particular interest is the emphasis on ‘Asian values’, as against the universality claim of ‘Western values’. Some of the Asian countries in particular Malaysia, Indonesia and Singapore in early 1990s put forward what Clayton and Tomlinson says, ‘cultural challenge to human rights’. They argue that ‘international human rights law should not necessarily be applied to them because it was Western and did not conform to Asian culture …’85 China has also voiced such concerns. It has been argued that Western notion of human rights are excessively individualists and insist on rights as opposed to family values of Asian societies which also account for duties. Further, Dr Mahathir Mohamad, Prime Minister of Malaysia regarded the West as ‘decadent’ and has cited the trend reflected in gay rights as unacceptable.86 The Bangkok Declaration, 1993 of regional meeting of Asian ministers as run up to the World Conference on Human Rights at Vienna reflected the concern implied in the Asian values debate.
Human rights, as an instrument, have also been part of a negotiating position in the World Trade Organization. Many Asian countries have felt that the Western industrial countries have used or are using human rights as a mechanism to work against the trade leverage that many Asian countries enjoy otherwise. For example, the stick of ‘non-trade barriers’ such as alleged use of child labour can be cited for putting restriction on imports from many Asian countries.
Non-governmental groups in 1984 adopted the Declaration of Principles of Indigenous Rights at Panama at the World Council of Indigenous Peoples. The Declaration advocates preservation of traditions, customs, institutions and practices of indigenous peoples. Chris Brown has pointed out that many of these contradict the contemporary liberal norms. In fact, African Charter, 1981 cited above implies that rights of one people would be different from the rights of other people, thereby challenging the universality claim of human rights.
Feminist critique has also emerged as one of the strongest critique of human rights debates. First generation of rights, in the nature of civil and political rights, focused on freedom of speech, assembly, vote, etc. and assumed that these rights are for active citizenship. But recall when women got voting right in many countries; in England, women were granted right to vote only at the end of the First World War.
Theories of human rights
Based on the grounds of human rights and the specific challenges to the universality claim of human rights, we can list the perspectives or theories of human rights as follows:
- Liberal theory of rights: Locke's theory of natural rights as advocacy of rights of life, liberty and property of individuals can be considered as the basic human rights. This became basis of national declarations of rights of man and citizens and first generation rights in the international rights instruments. Libertarian theorist Robert Nozick has also invoked natural rights to support priority of right over equality as political value.
- Theory of welfare or positive rights: Rights, which are in the nature of social and economic rights and concern welfare of the people, belong to the second generation of rights.
- Cultural relativist theory of rights: Supporters of cultural relativism advocate recognition of relative significance and values of different societies and also groups in society and their protection. The Asian values versus universal rights claims can be associated with the relativist approach.
- Multi-cultural theory of rights: Supporters of multiculturalism endorse ‘diversity arising from racial, ethnic and language differences’. They argue that ‘individuals are culturally embedded, in the sense that they largely derive their understanding of the world and their framework of moral beliefs and sense of personal identity from the culture they live and develop’.87 They advocate equal/fair opportunity to all groups for participation in the affairs of the state. This advocates claims for rights based on cultural practices and specificities. The very idea of human rights in a pluralist society, where different claims require recognition, needs revisiting. Emphasis on human rights may result in ethno-centric assumptions and the values of dominant group may get primacy over the weaker ones. The idea of minority and multicultural rights and right to their representation and at times self-determination, emerge from this perspective. Supporters of the multicultural perspective include theorists and writers such as Charles Taylor, Will Kymlicka and Bhikhu Parekh.
- Communitarian theory of rights: Some writers such as Michael Sandel, Alasdair Maclntyre, Charles Taylor, Michael Walzer and others have argued that each individual develops an identity, talent, and pursuits in life as a member of community only. As such, they reject the individualistic perspective of liberal and libertarian arguments. They are critical of treating the individual as autonomous rational and moral agent. This is known as Communitarian perspective of rights, as it seeks to identity choice of the individual in the life and identity of the community. In a sense, the communitarian position implies that the rights of the individuals should be recognized as part of community and not as autonomous choosers.
- Feminist theory of rights: Feminists criticize the content and language of the human rights debate. They have argued for women specific rights to be included as part of the human rights. Their focus is to transform the content of rights debate and get recognition for centrality of women's rights. They feel that male dominated discourse has not provided enough space for women rights and as such there should be: (i) extension of relevant rights, which have been recognized as rights of men to women, and (ii) those rights, which are women specific, should be included in the human right discourse. Feminist theorists include Shulamith Firestone, Sheila Rowbotham, Catherine Mackinnon and others.
- Anti-colonial or post-colonial theory88 of rights: A perspective that is based on the apprehension of colonial linkage of the non-western countries with erstwhile ruling powers and their contemporary avatars, argues against Euro-centric view of rights. As Heywood says, doctrine of human rights is portrayed as an example of cultural imperialism. Rights, which have specifically evolved in the context of European history, are being proposed as human rights. M. K. Gandhi (Indian leader who fought for liberation against British rule), Marcus Garvey (Jamaican political thinker and activist who advocated black nationalism along with economic self-sufficiency), Ayatollah Khomeini (Iranian leader of the Islamic Revolution), Franz Fanon (Algerian-French theorist whose The Wretched of the Earth, emphasized psychological aspects of colonial subjugation) and Edward Said (Palestinian-US writer who have authored Orientalism, Culture and Imperialism and argued that colonialism presented ideological and cultural biases that disempowered colonized people by representing them as the ‘non-Westerner’, other’, etc.) are considered as advocates of anti-colonial or post-colonial theory.
- Marxian theory of rights: Although there is no specific Marxian theory of Rights, the very idea of natural rights and particularly the right to private property would be alien to Marxian analysis. Natural rights have been constructed to revolve round the right to private property and as such it is against the very logic of socialist ownership of means of production. In a society with unequal distribution of property, Marxian perspective would argue, rights of man are nothing more than right to private property and advancing the interest of private property. Every right in a capitalist set-up is nothing but a right to inequality. If human rights are based on natural rights, they are nothing but bourgeois rights against the rights of the oppressed people. In a socialist society, every one would have equality of rights. One may argue that if everybody is rational, if everybody has equal capacity to own property and compete and if everybody is born with natural or human rights, then why is that some are so rich that they can buy others and others so poor that they are forced to sell them? History has not proved that all have enjoyed equal rights. Can you search for any moment of history when the propertied have fewer rights than those who did not have property? No answer; will not have.
Marxian Perspective on Rights
It is understood that Marx neither concentrated on formulation of a theory of state nor of rights. Rights, as claims of individuals to be recognized by the state or the society, need special scrutiny if we have to construct any Marxian position on rights. Unlike the Liberal framework, which is based on individual as the moving force or rational agent, Marxian framework considers individual as part of a class, in a class divided society. Secondly, the distinction of whether individual has worth as a separate, atomistic and self-seeking being or as a social being also informs Marxian framework of rights. Marx treats the state as an instrument of oppression and accordingly, social relations in a capitalist society, as one of domination and ownership. In this situation, how can rights be available equally to all in a capitalist state? Thus, a basic postulate of Marxian position is that so far as right to private property is given primacy, all other forms of rights would be subject to the advancement of this interest.
As such, rights, equality and liberty would be principles suitable to certain classes and not all human beings. Moreover, the content and nature of such principles are subject to change as per the interests of the dominant class. In this context, Emile Burns opines, ‘ideas that seem to be universal—such as the idea of human equality—in fact do not mean the same thing in different stages in society … the “liberty, equality and fraternity” of the great French Revolution meant the liberty of the rising capitalist class to trade freely, the equality of this class with lords, and the fraternity of this class with itself.’89
To appreciate Marxian perspective on rights, we should think of the following aspects and their implication on the concept of rights:
- Concept of ‘man’ as a social being and embedded in class relations in a class divided society and not having a priory rights.
- In a condition of false consciousness and alienation, what rights are possible for a class that is subjected to property relations?
- Is equality of rights possible in a class divided society?
- Critique of the state as instrument of exploitation and protector of property rights and not an agency for safeguarding rights of all.
- Rights as legal relations rest in superstructure, which is determined by economic relates.
- Working class is not struggling for rights but for revolution?
Critique of bourgeois rights
In his Economic and Philosophical Manuscript (1844), Marx says ‘Man is a species-being … also because he treats himself as the actual, living species; because he treats himself as a universal and therefore a free being.’90 The import of this idea of Marx is that human being is, what John Plamenatz in his Karl Marx’s Philosophy of Man says, a ‘self-creating being’.91 This is an idea of ‘man’ as a self-fulfilling creature—a species-being realizing one's self in work, its products, in interaction with fellow beings, in relation with the nature. It in this context that we can understand Marx's analysis of alienation, where human being is alienated from work that one does, the product one creates, social relations that one is placed in and ultimately the nature. If we may say so, Marx's ethical, moral and spiritual critic. of capitalist mode of production and institution of private property is based on the concept of alienation. While the political economy of the laissez faire economists, a la Smith and others, identify ‘self-interest of man’ with his atomistic, self-centred and possessive nature, for Marx man's self-interest lies in realizing one's capacity and freeing from ‘human self-estrangement’, i.e., alienation .
One may be tempted to ask, why would Marxian critic on capitalist system and private property constitute a critic of rights in a capitalist society as well? The liberal perspective views freedom of man in individualistic and atomistic terms or what Macpherson would say, realization of ‘possessive individualism. Marxian views portray man's self-fulfilment and realization in terms of social and human fellowship. While the liberal theory seeks rights of individual to possess, transfer, exchange and accumulates property as an end, the Marxian view seeks man's creativity and self-realization in work. Accordingly, liberal views argue for provision and safeguarding of those conditions that allow creation, accumulation, possession, transfer and exchange of private property. And these conditions can be secured by protecting certain rights that the state must protect against any infringement of others. This means, right to private property, contract and security. All other rights, such as civil and political, are meant to provide necessary condition for the right to private property, contract and security to be protected and sustained. Is it not that all capitalist societies insist on protection of these rights? Are not these rights class rights or what Marx says bourgeois rights? These rights by their very nature are to be applied unequally and are not meant to be equal for the bourgeois and the proletariat at the same time.
Capitalist system on the one hand, secures bourgeois rights and on the other, results in alienation of workers and in fact all human beings. In both the conditions, a human being is reduced to an atomistic and self-centred being. As such, rights are not helpful in self-realization but are mere means for an external end, the end of possessive and acquisitive society in which an individual creates and accumulates not for self-realization but for the sake of further accumulation; profit for the sake of profit.
Another aspect that the Marxian view contests is that rights are a priory and naturally available to individuals. A very basic question that comes to our mind is that when rights are social conditions of realization of certain ends, how can they be available before society itself is constituted? Natural rights theory gives primacy to rights that are already available to individuals before they even constitute society. This could be possible only when one decides that the individual is self-interested, atomized and remains so even if he enters the society. As such, rights of man are already decided even without the society and they are enforced on the society as rights to be protected. The Marxian view, on the other hand, argues that human beings are social beings and can enjoy rights in company of other fellow beings. Rights must be social rights and they must emanate from human beings in society and not a priori. Rights are not conditions of realization of a self-centred individual, but realization as a social being, which is endangered because of right to private property.
Legal rights are rights that the state secures. But state in a capitalist system will secure only those rights that are bourgeois rights. Be it rights under the Magna Carta of 1215, which granted certain civil and political liberties to the barons in England, or rights of man and citizen in the French Declaration and the American Declaration of Independence, which espoused the demands of the rising bourgeoisie, all reflected the demands of a particular class. In a capitalist system, rights of property, security and contract are treated as inviolable and these are the rights that are legally protected. However, it was the effect of reformist liberalism that argued for certain other rights such as rights to working hours commensurate with leisure and better conditions of life and right to equal wage for equal work, etc. that punctuated the early insistence on bourgeois rights.
Orthodox Marxian position that the superstructure, i.e., legal, political, philosophical and educational systems, is determined by the infrastructure, i.e., the economic relation, implies that legal rights are a reflection of the relations that obtain at the economic level. Legal protection of right to property and contract are reflection of the capitalist relations. Can we raise a question, which may also be relevant in the Indian context? Does any political system of capitalist society recognize the right to strike with the same vigour that it recognizes the right to private property? Even the Indian Constitution which may be characterized as a moderate liberal constitution for its liberal and social welfare mix, too borrowed the right to property and provided it explicitly under the fundamental rights, though subsequently it is retained only as a constitutional right. On the other hand, right to strike can only be implied under right to association and not to be found as explicitly as the right to property. Further, intervention of courts has led to the interpretation that workers do not have the right to strike. It is true that a constitution should not be a charter of revolution and its own destruction, but is it not equally true that it should neither be a charter of class interest?
Is the working class struggling for rights or revolution?
Under the capitalist system there is inequality of rights as well as alienation. This be so, the Marxian perspective seeks the end of both. But it is also true that neither is possible under the capitalist system. As a result, revolutionary overthrow of the capitalist system is the slogan that comes into play. Till that happens, we may ask a question—under the capitalist system, is the working class struggling for rights or revolution? Two possible answers within the Marxian framework may be possible.
Firstly, if the orthodox Marxian position in terms of primacy of superstructure is considered, under the rubric of bourgeois rights there is no place for rights that are required by the working class. Any rights of the social, civil and political or even economic nature, such as right to freedom of speech (slogan, dissemination of radical ideas, etc.), association (formation of trade and labour unions), contract (get employed), vote and such rights are concessions in overall interests of the capitalist system. These rights are neither unqualified nor absolute. They are regulated and at times in fact harm the very basis of revolution—emergence of revolutionary consciousness. Lenin in his What is to be Done? has pointed out that piecemeal demands of the working class for concessions in terms of working hours, wages concessions, etc., has resulted in what he described as economism—one piecemeal demand after another for economic concessions. This apparently has no bearing with revolutionary consciousness that could result in the overthrow of the capitalist system. According to this interpretation, if the working class is struggling for revolution, demands for economic concessions and rights are compromised.
Secondly, taking a relative autonomous perspective that we discussed in the chapter on state, it can be argued that the working class can secure certain rights that may help in organizing and effecting changes in the economic relations. It has been argued that the right to vote may help in political organization of the working class. In fact, in many countries including India, combined with rights to association and trade unionism, the right to vote provides the basis for organization of the left parties. It is also true that many economic rights are recognized as part of civil and political rights.
Rights under the socialist society: To each according to his need.
Having achieved the end of a system that protects bourgeois rights, what rights are admissible in a system or society that the Marxian perspective treats as its own? Three considerations are important in a socialist system so far as rights are concerned.
Firstly, inequality of rights is done away with and equality of rights is established, as right to private property is abolished. Every one has an opportunity to work, contribute as per their capacity and share the benefits as per needs. The main principle of distributive justice in socialist system to begin with, would be ‘from each according to his ability, to each according to his work.’ However, in a fully realized communist society, the principle, ‘to each according to his work’ will be replaced by ‘to each according to his need’. Initially, though a socialist system is established, the state remains and so do many elements of the old system and class contradictions. As such, the principle of distributive justice can only be what prevailed as bourgeois right. After the state withers away and elements of class contradiction disappear, rights would be based on the singular principle of ‘from each according to his ability, to each according to his need’. Here, instead of ‘work’ as basis of distribution (which is like property as per work and hence bourgeois right), ‘need’ as basis of distribution prevails. It is the right to equality that is important and the rest of the rights follow from it. Bourgeois right is based on right to inequality, socialist right is based on right to equality.
Secondly, primacy is given to economic rights over civil rights. This means when private property is abolished and the operative principle is ‘from each according to his ability, to each according to his work’, there may not be need for other rights such as civil and political rights. Stalin once said, ‘What can be the “personal freedom” of an unemployed person who goes hungry and finds no use for his toil? Only where exploitation is annihilated, where there is no oppression of some by others, no unemployment, no beggary and no trembling for fear that a man may tomorrow lose his work, his habitation, his bread—only there is true freedom found.’
Thirdly, rights and duties are treated as correlated. The very principle, work as per ability and distribution as per need, provides that rights and duties are correlated. Each must contribute in order to share. Duties are treated as social obligation of man. However, this does not mean those who are unable or sick or challenged will have no luck. On the contrary, they are provided with social security and collective protection. The emphasis is on provision for basic material necessity.
Critical evaluation
A socialist system provides for particular rights such as right to work, education, social security, rest, wage, vote, membership of social organization, etc. Heywood points that ‘The Soviet Constitutions of 1936 and 1977 … established a truly impressive array of individual rights.’92 However, these rights could not be realized because of the overwhelming presence of the Communist Party. Liberal writers have criticized the Marxian position for ignoring the rights of the individual. Some writers from the erstwhile Socialist systems such as R. A. Medvedev of Russia and Stojanovic of Yugoslavia were also critical of the socialist system and absence of rights. Stojanovic pointed out that ‘Socialism has been most disappointing in its failure to guarantee the rights of assembly, expression of one's opinions, social criticism, the strike and demonstration.’93 He insisted that right to strike must be recognized by socialist democracy.
Rights under the Indian Constitution
The Constitution of India provides Fundamental Rights as a charter of not only individual rights but also of group rights. This could be obvious from the dimensions and types of rights provided by the Constitution. Rights for religious, cultural and linguistic groups have been provided. Secondly, rights given to individuals also fall under two categories such as right to a person in India (e.g., rights under Articles 14, 20, 21 etc.) and right to a person who is citizen of India (e.g., Articles 15, 16, 19 etc.). Thirdly, by providing as a charter of rights, the Constitution has recognized and secured these rights as enforceable by the courts. This is obvious from Articles 32 and 226 of the Constitution, which provide remedies for enforcement of rights conferred through writs. These are then legal rights and follow the Bill of Rights system of providing secured rights as prevails in USA rather than the Common law system that prevails in Britain. Fourthly, besides the Fundamental Rights, the Constitution also provides certain other rights, which may be categorized as Constitutional rights. Fifthly, implied in the Fundamental rights are certain rights, which have been granted by Parliament as Statutory Rights, such as right to information, implied in Article 19. Sixthly, there are certain rights in the nature of social, civil and economic rights that have been provided as Directive Principles of State Policy but are not enforceable. We can say that these rights are moral, social or welfare commitments of the State though not legally recognized as enforceable. Broadly, three categories of rights are available through the Constitution. These are:
Fundamental Rights
- Right to Equality including abolition of untouchability [Articles 14–18]
- Right to Freedom including freedom of speech and expression, assembly peacefully, association and union, movement and residence throughout India, profession, trade, business, occupation etc., [Article 19]
- Right against double jeopardy, retrospective application of law [Article 20]
- Protection of life and liberty, which has been constructed by the judiciary to include right to shelter, livelihood, legal aid, etc. [Article 21]
- Right against arrest and detention in certain cases [Article 22]
- Right against Exploitation—Right against traffic and forced labour [Article 23]
- Prohibition against employment of children in factories [Article 24]
- Right to freedom of Religion—conscience and free profession, practice and propagation of religion [Articles 25–8]
- Rights related to protection of interests of minorities—cultural, linguistic, religious, educational [Article 29]
- Cultural and Educational Rights—Right to freedom to manage religious affairs including tax exemption [Article 30]
- Right to Constitutional remedies [Article 32 and also 226]
Constitutional Rights
- Right to citizenship save certain conditions [Articles 6, 7, 8]
- Right not to be taxed save by authority of law [Article 265]
- Right to property [Article 300A]
- Right to be registered as voter save certain conditions. This implies right to be a candidate, contest for and hold public office [Article 326]
Statutory Right
- Right to Information [Right to Information Act, 2005]
Looking at the array of rights provided by the Constitution of India under Part III and the desirable moral, social and welfare commitments under Part IV, we can but agree with Granville Austin that ‘Indian Constitution is first and foremost a social document.’94 Austin describes these two parts as ‘the conscience of the Constitution.’ In a sense, though tilted towards liberal position in providing rights, it does recognize what social-welfare theory of rights, or multiculturalists, or legal theorists argue for. It also provides certain rights, which are core to the human rights debate such as the right of equality of all irrespective of gender and caste; right of participation and practice of religious and cultural life; right of human dignity and abolition of untouchability, etc. Abolition of untouchability actually secures dignity of individual against social oppression. It is a right not against the state but against the society. If the Constitution of India has been envisaged as a document of social revolution, as Austin says, lets hope it would usher in such a revolution, sooner than later.
Review Questions
- How are rights defined? Are rights conditions of liberty and freedom?
- What are the different types of rights? Discuss briefly.
- What are different conventions of providing rights by the state? Does the Constitution of India provide secured rights?
- There should be only one right—right to equality and role of the State should be to protect that right against violence and oppression. Critically analyse.
- Constitution of India through Fundamental Rights provides a charter of not only individual rights and liberties but also that of the cultural and religious groups. Discuss.
- ‘That all men are created equal; that they are endowed by their creator with certain inalienable rights; that among them are life, liberty and pursuit of happiness’ (American Declaration of Independence). Discuss the concept of natural rights in the context of this statement.
- ‘Rights properly so called, are the creatures of law properly so called; real laws give birth to real rights’ (Bentham). Discuss the concept of legal rights in the light of this statement.
- ‘Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world … All human beings are born free and equal in dignity and rights’ (Universal Declaration on Human Rights). In the light of this declaration discuss the concept of Human Rights.
- ‘Human consciousness postulates liberty, liberty involves rights, and rights demand the State’ (Green). In the light of this statement discuss how rights are a moral entitlement.
- ‘Human Rights are general rights and not specific rights.’ Discuss/critically evaluate.
- ‘Legal rights are basically recognition of other rights like natural rights, historical rights, moral-ideal rights or socio-economic and welfare rights.’ Critically evaluate whether legal rights have primacy over other rights.
- ‘In the capitalist system, there is only one right, right to private property. All other rights are subject to advancement of it interest.’ Critically discuss.