The Concept of Rights

It had not always been felt throughout history that all human beings are entitled to rights (and
recognition). Kings and religious Clergy/Priests for instance in many societies have had more rights
than commoners. But the with the onset of early classical liberalism there had been a demand raised
for equal rights and recognition on the basis that all men are born equal particularly by the newly rich
trading bourgeois who felt that while they had the same wealth as feudal lords and princes they did
not have the same legal and social power. Later socialism added it’s own interpretation to the concept
of rights and recognition who were followed by the Positive Liberals in the early part of the twentieth
century. By the middle of that century the concept of rights was well accepted and fairly universally
excepting in the cases some special countries like South Africa and some Islamic states like Saudi
Arabia in the Middle East where women have till today been not granted the status of full human
beings both in theory and practice. The Universal Declaration of Human Rights in 1948 cemented the
legitimacy of rights forever in a way.

Each school of thought defined rights and recognition in it’s own way. The central question or theme
on the basis of which views have differed has been on what basis rights and recognition should be
given to the individual? Over three hundred or so years in the development of the concept since the
birth of liberalism different theories have been propounded which have based their justification for
rights (and recognition) on different bases. The main theories of rights have been:

1. Theory of Natural Rights

2. Theory of Legal Rights

3. Historical Theory of Rights

4. Idealist/Moral Theory of Rights

5. Social Welfare Theory of Rights

6. Recent Liberal Theory of Rights

7. Marxist Theory of Rights.

The Theory of Natural Rights was the first plea for rights in the western world on the basis that
naturally by birth man is entitled to some rights and there are no requirement of birth, family position,
social position, wealth etc that can be imposed. John Locke, the classic liberal had declared all men are
born with some inherent rights and ‘God gives them to his children just as he gave them arms, legs,
eyes, and ears’. The social contract theorists like Hobbes, Locke, and Rousseau argued that man had
these basic rights before the origin of the State and he surrendered some of them to a superior authority,
i.e., civil society to safeguard his other rights from encroachment to obtain the benefits of community
living. Hobbes called the right to life a natural right, Locke the rights to life, liberty and property
whereas Rousseau said that liberty and equality are gifts of nature. They argued the individual cannot
surrender these rights to the state. The theory of natural rights came under attack and disapproval of
later thinkers. The great utilitarians did not find the idea that man had rights before the advent of and
prior to the relationship with the state. They argued rights can only be conferred by the law. English
political and legal thinker Edmund Burke argued rights can only be on the basis of customs and
sentiments of the society in which an individual lives. The main points of criticism of the natural theory
have been along the following lines:

(a) If an individual’s rights are absolute then the society cannot touch them even in conflicting
situations where the interest of the most members of society by restricting those rights. For instance in
a famine, if a man asserts his right to property on one side and hoards food and on the other hand
many others lose their rights to life as a consequence, there is conflict.

(b) It was argued rights are there due to social recognition for the same. So there cannot be any
inherent rights. Green pointed out every right must be justified in terms of ends, which the community
considers good and that which cannot be attained without rights. The positive liberals like Green and
Laski related rights with useful functions in society.

(c) The natural theory assumed one can have rights and obligations independent of society but many
thinkers have argued the question of rights emerges only in the society and in the context of social
relationships.

(d) Also many thinkers have felt to use the term ‘natural right’ lands one in a tricky situation because
one cannot define and justify what ‘natural’ means.

The Theory of Legal Rights was propounded by the legal philosophers, and utilitarians like Bentham,
who argued all rights of man are derived from law and law itself is based upon utility. Law and rights
he said are simply two aspects of something, which is essentially one: law the objective aspect and
right the subjective. The state draws up and lays down a bill of rights and so the rights are not prior to
the state but from the existence of the state itself. It is also the legal framework of the state that
guarantees rights. It is again the state which changes the content of rights whenever it wants. But they
accepted that rights may not necessarily be the creation of the state but they become rights only when
they are enforced by the state. The legal theory of rights was rejected by the later positive liberal
thinkers (and others) who argue along the following lines:
(a) The legal theory did not cover the whole range of rights. There are rights we enjoy from our society
that often don’t enjoy legal recognition but they exist nevertheless.

(b) It seems the legal theory only accepts only those rights, which are drawn up by the state and
legally enforced and recognised. Laski argued men enjoy rights not merely as members of the state but
also as members of the society and various associations and relationships in society. He found the idea
of limiting rights to one source, the state, unacceptable and strange.

(c) If the state and the law are the sole source of rights then there is no right against the state. The
liberal writers like Green and Laski saw the need to resist the state in certain circumstances. As Laski
argued the material source of rights is the community’s sense of justice and not the law. Law is nothing
but the concretisation of the feelings of the community and hence the obedience to the state is
obedience to right and not might and obedience to the law is obedience to the justice and not authority.

The Historical Theory of Rights has its origin in the writings of Savigny and Puchta in Germany, Sir
Henry Maine and Edmund Burke in England and James Carter in the USA. The position taken by these
thinkers was that all rights are derived from the character of the state and the law, which are in turn
basically entirely historical in nature. They are all a product of history. Burke argued for instance that
the French Revolution gave rights to the French people, which were not a part of their historical
common consciousness, and so after the revolution and the execution of the King the system could not
sustain and the revolution turned into a dictatorship. Rights are the crystallization of custom, the
historical school argued, which in the course of time become rights. If there is a tradition of certain
rights or there are rights which people are accustomed to having then people start assuming they ought
to have those rights. Or in other words custom is the original form of law and most of the rights
according to the historical school are those, which turn out to have had the sanction of the longest and
least broken custom. It appears the historical theory was principally an attack on the natural law
theorist and on the analytical school of jurisprudence to regain the old conservative traditional
positions. The theory obviously does not bother to distinguish between what would be right and
wrong in customs as a source of law. If somebody argued that he had a right to keep slaves, indulge in
polygamy, apartheid etc could he be allowed to stand his ground. Will people wait for the day when
abominable customs and traditions change so that they can have basic rights. Progressive reform and
social justice comes to a stop if this theory is accepted and hence this theory is almost laughable.

The Idealist/Moral Theory of Rights holds that the basis of all rights is morals and neither nature’s
actions, nor law, nor customs etc. Every individual has a moral self and the need to develop his
personality and rights provide the environment to help man in his journey of moral upliftment. Since
everybody in society has the same aim of developing his personality it implies that rights arise only in
the context of a society and the rights of the individual are to be in harmony with those of others. So
the individual’s rights are a part of serving the common good as well. Rights are recognised by the
society and enforced by the state and so there is no question of rights without the state. So positive
liberals Green supported the moral theory and aw it as supportive of their idea of a welfare state. The
moral theory bases its concept of rights on morals but it has been pointed out that moral rights are
contextual rather than universal because they are limited to people who share a common code of
morality.

The Social Welfare Theory of Rights was a combination of the various theories of rights that came
before it like those that were based on natural rights, legal, ideal or historical. This theory was
developed by the positive liberals and to support their prescription of a welfare state. The major
contributors were T.H. Green, G.D.H. Cole, L.T. Hobhouse, Harold Laski, Ernest Barker etc. Their
central proposition was that a law, custom, natural right etc should all yield to what is socially useful
or socially desirable. As Hobhouse put it: ‘Genuine rights are conditions of social welfare and the
various rights owe their validity to the functions they perform in the harmonious development of
society’. Laski commented on this concept of rights extensively in his book A Grammar of Politics and
made the following major points as follows:

(a) The concept of Rights emerges only in the context of a society. A right is at once a private claim
of the individual and a right shared with others together in a community situation. Hence when
promoting individual rights the common good is and must be served.

(b) An individual can claim and justify rights only in relation to the functions he performs in society
for the social good.

(c) Rights are a claim against the state and the state must enable the realisation of rights. The state
can put limitations on rights in the interest of social welfare of the society as whole but if these
restrictions become unreasonable then it looses it’s moral authority and then the individual has not
only a right but a duty to resist the state.

(d) Since establishment of rights are a condition for social welfare, the state must guarantee some
rights like the right to work, a right to a minimum or adequate wage, a right to reasonable hours of
work, education and the right to participate in industry. The state also needs to limit the right to
property.

(e) The authority of the state must be limited, democratic and decentralised. The state must not be
alien to the citizen and there must be active and proper communication between the two.

In the last quarter of the twentieth century there has been a new wave of Liberal Theories of Rights
dominated by thinkers like John Rawls and Robert Nozic who in turn have inspired other writers in
the same tradition. While Rawl was clearly a positive liberal in the Keynesian tradition Robert Nozic
was a in the neo-liberal tradition that is really a re-incarnation of the early classic liberals in many ways.
So while Nozic argued for unbridled free markets and free trade capitalism, and a minimal state, Rawls
argued for the welfare state concept while preserving the capitalist system. Nozic asserts ‘individuals
have rights and there are no things persons or groups may do to them (without violating their
rights)’[1]. What he basically meant by that was the right to own property and to profit unrestrictedly
from using that property through trade but the moral logic he adopted to build his theory was based
on celebrating the individualistic nature of man. He argued individuals must be the ends and not the
means and hence individual’s rights are supreme and society can not restrict them I the interest of the
common good. Respect for rights he suggested was respecting people’s rights to be equal. He negates
the idea of welfare rights of the individual as held in the positive liberal tradition. His far right concept
of property rights excludes any welfare rights and their protection by the state. He also suggest all
political institutions are coercive by definition and must command the unanimous assent of the
governed. Every individual lives in his own exclusive domain and must not be disturbed. He is the
owner of himself and his talents and property and he should have full freedom with no restrictions
even in the interest of societal good to put them to whatever use he wants. Rawls on the hand used the
words ‘rights’ and ‘justice’ interchangeably. All rights emerge from justice. To do justice rights are
granted and they may also be taken away for the same reason. He was of the view rights should
guarantee a fair share of economic resources. The social and economic inequalities should be managed
and such that those with the least material goods such as income , wealth, education etc get a larger
share than they have been getting. But Rawls does not wish to change the basic structure of the market
economy with it’s inevitable creation of extreme material inequalities but wants the system of taxation
for instance to be so designed that leads to some level of redistribution of goods to the worse off in
society. He advocated that people’s rights to social goods should not be dependent upon their natural
endowments.

The Marxist Theory of Rights would be a bit of a misnomer because the Marxists never really attempted
to propagate a separate theory of rights but offered a great critique of the liberal ‘bourgeois’ concept
of rights. He argued economic inequalities lead to political inequalities and make most constitutionally
guaranteed liberal rights meaningless. Marx made the following points in his criticism of the bourgeois
concept of rights:

(a) Most rights guaranteed in a liberal constitutional set up are abstract and formal and useless really
unless institutional changes were introduced by law to make the rights a living reality. For example
the right to life means nothing if it doest mean the right to means of subsistence on which life depends.
Marx made the point that property ownership does not merely give the holder of property the power
over the thing that he owns but also power over men because the property is also a means of
production and using that means of production men earn their living. The owner of the property or
the means of production can easily exclude who ever he fancies. That means whoever is excluded for
whatever reason becomes jobless and hence must starve.

(b) Equality of rights is an essential condition for achieving social justice but it is not enough. That is
because the rich always are protected and given justice differently from the poor due to the influence
of the money power. Hence Marx declared ‘every right is in general a right of inequality’ in a liberal
set up. A right to be equal only ends up meaning a right to be unequal due to the power of capital or
money or property of the rich.

(c) Rights granted by the state constitutionally can never make them a de facto reality but they are
dependent on the economic structure and cultural development of society for a real existence.
(d) Rights were hence not as important as setting up a classless society in a revolutionary struggle
which is the only way to achieve socio-economic and structural conditions that will endure on a
permanent basis and not get corrupted or distorted and guarantee real de facto equal rights