Foundation Optional Course

POLITICAL SCIENCE & International

Relations

Political Theory

Rights

Dr. Shruti Joshi

 Syllabus of PSIR Paper – I (250 marks)

Political Theory and Indian Politics (Section A)

Topics Sub Topics

Political Theory Meaning and approaches.

Theories of state Liberal, Neo-liberal, Marxist, Pluralist, post-colonial and Feminist.

Conceptions of justice with special reference to Rawl’s theory of justice and its
Justice
communitarian critiques.
Social, political and economic; relationship between equality and freedom;
Equality
Affirmative action.

Rights Meaning and theories; different kinds of rights; Concept of Human Rights.

Classical and contemporary theories; different models of

Democracy
democracy—representative, participatory and deliberative.

Concept of power Hegemony, Ideology and Legitimacy.

Political Ideologies Liberalism, Socialism, Marxism, Fascism, Gandhism and Feminism

Dharamshastra, Arthashastra and Buddhist Traditions; Sir Syed Ahmed Khan, Sri
Indian Political Thought
Aurobindo, M. K. Gandhi, B. R. Ambedkar, M. N. Roy.

Plato, Aristotle, Machiavelli, Hobbes, Locke, John S. Mill, Marx, Gramsci, Hannah
Western Political Thought
Arendt.
(I) Understanding the concept of Rights
• Rights are fundamental to human societies, forming the bedrock upon which principles of justice, liberty, and
equality are built.
• Rights are the claim or entitlements of a citizen which the society recognizes to be necessary for his
upliftment and the welfare of all, and is enforced by the power of the state.
• This means rights presupposes the existence of the society.
• Also they require the existence of State for enforcement in case of infringement of rights.
• Rights are typically a liberal idea.
• However, Marxist considers right as ‘a bourgeoise concept, based on the false consciousness’. This is because
a false notion is created that the interest of man is in conflict with the interest of larger society. Thus Marxist-
socialist gives emphasis on duties rather than rights.
• Rights are instruments of happy life and development of personality.
• Rights are changeable in nature---Means they keep on evolving.
• Every right has a corresponding duty.
 • Hohfeld has interpreted the concept of right in four ways, viz:
✔ Right is a claim for entitlement. It means right is a claim of a person and it enforce duty on
the other.
✔ Right as a liberty. It means right should give freedom to pursue, what one wants to do.
✔ Right as a power. It is recognition of power of man which limits the authority of the state.
✔ Right as immunity. It means rights is a type of protection which man enjoys against society
and state.

• According to Dworkin (book – TAKING RIGHTS SERIOUSLY) Rights are trump. It means
rights of an individual should be given preference over any other consideration, that is either
community or state.
Dworkin says that “If the relevance of fundamental rights can be weighed at every new
upcoming factual scenario and like any other social interest, then balancing is a confusion that
threatens to destroy the concept of individual rights”. This appears similar to Mill’s absolute
right to freedom of speech.
 UPSC Mains Question

1) Discuss the doctrine of 'rights as trumps'. (2019)

Ans: In the above statement Dworkin argues that individual rights are so fundamental that they cannot be
compromised or made secondary to other considerations like collective interests or societal goals. Certain
fundamental rights cannot be violated balanced/ compromised, even if doing so would lead to greater overall or
societal happiness.
This perspective is associated liberal school of thought that give primacy to individual autonomy and freedom.
Implication:
✔ Theory provides strong protection to individual rights.
✔ Act as a limitation on State arbitrariness.

Criticism:
✔ Can create a rigid and inflexible approach thereby inhibiting the ability to address the complex issues in
society.
✔ Reasonable restrictions or balancing in rights are sometimes necessary to preserve and safe the rights itself.
E.g. Indian constitution.
 (II) Types of Rights
1) Positive vs. Negative Rights:

Positive rights entail the provision of goods or services, often requiring collective action or state intervention. Negative rights,
on the other hand, pertain to non-interference and abstaining from actions that infringe upon an individual’s freedom

2)Moral Rights
• Rights which are based on the ethical sense of morality and justice of the society are known as moral rights.
• These rights are not enforced by the state. That is why some people do not like to call them right proper.
• For e.g.—
✔ to receive maintenance from the children is recognized in Indian society as a moral right of the parents.
✔ Parents have the rights that they should be assist by the children in their old age.
✔ Obey to elders and affection to younger.

3) Legal Rights
• These rights are recognized and enforced by the state.
• The state enforces these rights through law and punishes those who infringe upon such rights of others.
• The rights which are granted to individual by law and are protected by law are known as legal rights.
• For example; in our country every individual are enjoyed the rights of life and property.
 • Legal Rights are sub-divided into:
a) Civil Rights
b) Political Rights

a) Civil Rights:
• These rights are essential for a free and progressive life.
• They concern the life and property of the individual.
• Without these rights civilized life is impossible. E.g.
✔ Right to life
✔ Right to property
✔ Right to work
✔ Right to contract
✔ Right to free movement
✔ Right to free expression
✔ Right to worship
✔ Right to language and culture

b) Political Rights---e.g.
✔ Right to vote
✔ Right to be elected
✔ Right to Public Office
✔ Right to petition
✔ Right to criticize and discuss the government
✔ Right to receive protection while staying abroad
 III) Theories of Rights
1) Conventional theory of Rights
i) Theory of natural rights
• One of the oldest theory of rights of man.

• Natural rights are fundamental to human existence and man can’t be deprived of his fundamental rights.

• Two schools of thought have in Natural Rights tradition:

✔ Social Contract Tradition (Locke and Rousseau):

By natural rights we mean those rights which were enjoyed by the people even before the origin of the state.
According to Locke, man enjoyed the natural rights in the state of nature.
These rights were enjoyed by the people in the state of nature.
1. Rights of life
2. Rights to property: One can have property & he has this right to secure his property.
3. Rights to Liberty

• Reason in man teaches him not to harm others in his life, liberty, health and property. Man has not transferred these rights to
the state.
✔ Teleological Tradition (Thomas Paine, TH Green):
o Means doctrine of final causes.

o It refers to the idea that any developments in human life are product of the purpose that is served by them.

o They seek to relate the rights of man with the purpose of human life.

o According to them, these rights comes from the very nature of man and serves the purpose of his life. These rights are
therefore called natural rights.

o Paine (in his Rights of Man) gave the theory of natural rights on teleological basis. He rejects the doctrine of the social
contract as it was ‘eternally binding’ and hence a cog on the wheel of progress.

o He insisted that every generation should be free to think and act for itself.

o According to Paine, man is different from animals and man should possess certain rights which give them opportunity to
lead the life as humans (teleology).

This school of thought rejected the social contact tradition as it is illogical for them and there is no justification to impose the
contract on successive generations.
Implication:
• Served as a source of inspiration for American and French revolution.

• American declaration of Independence (1776) upheld rights of ‘Life, Liberty and Pursuir of happiness.

Criticism:
• The theory appears ambiguous and subjective in nature .In actual practice, 8the word ‘natural rights’ can have
variable meaning. E.g. Aristotle considered slavery as natural.
e.g. Right to property was long treated as ‘natural rights’ but later the view was radically modified under the
influence of socialist thought.

• Also this concept is dynamic in nature, since there can be no ‘fixed’ natural rights. Their interpretation keeps
on changing with changing social consciousness.

• It is because of these limitations that natural rights are rarely invoked for building a rational basis of rights in
contemporary world. The States thus widely invoke the idea of ‘human rights’ instead of natural rights.

UPSC Mains Question

• Comment on: Idea of Natural Rights (2015)

ii) Theory of legal rights. (J Bentham, Hobbes)

• The theory of legal rights holds that all rights of man depend on the state for their existence.

• There can be no right in the proper sense of the term unless it is so recognized by the state.

• According to this theory, no rights are absolute, nor are any rights inherent in the nature of man as such.

• Refuting social contract theory, they argued that in the state of nature, man had power and not rights. It was
only when state comes into existence and establishes law and order, man can enjoy rights. Thus, the real source
of rights of man is state, not state of nature.

• Bentham criticizes natural rights as “a rhetorical nonsense upon stilts”. He condemns natural rights as an
invention of fanatics, which are dogmatic and unintelligible, devoid of reasoning. He also calls natural rights as
chimera, anarchical fallacies, terroristic language and rebellion.
• Hobbes argued that the only fundamental right of the individual, viz. the right of 'self-preservation', is better
maintained by the state than by the individual himself. Hence man must depend on the state for the
maintenance of his rights. He is free to do anything which is not restrained by the state. In other words, man
can have no rights against the state.

• For legal right theorists, Rights have no substance until they are guaranteed by the state. This implies:
(a) in the first place, that there are no rights prior to the state, because they come into existence with the state
itself;
(b) secondly, it is the state which declares the law and thereby guarantees and enforces rights—no rights can exist
beyond the legal framework provided by the state; and
(c) finally, as the law may change from time to time, the substance of rights also changes therewith—there can be
no 'fixed' rights in any society, not to speak of eternal or universal rights.

• Till 2nd world war, the legal theory or rights remained a dominant tradition of rights. Post 2nd WW, witnessed
the revival of the theory of natural rights in the form of the theory of human rights.

• UK represents the tradition of the legal theory of rights is represented by UK, tradition of natural rights or
fundamental rights by USA and France.
iii) Theory of moral rights (I. Kant, [Link])

The moral basis of rights postulates equal treatment of all citizens in the matter of securing
their rights.
iv) The Historical/ conservative theory of rights (Edmund Burke)

• This theory originated in eighteenth century conservative political thought.

• Edmund Burke (1729-97) is considered as the greatest champion of historical theory of rights.
• Historical theory of rights holds that rights are the product of a long historical process.
• They differ from state to state and from time to time because of the different levels of historical development
of society.
• Rights grow out of custom which stabilized through usage in several generations.
• Like Bentham, Edmund Burke is also critical of natural rights. He does not believe that the rights are
‘self-evident truths’. According to him, natural rights are “metaphysical abstractions”.
• Burke criticized the French Revolution (1789) for it was provoked by a conception of abstract rights of
man—liberty, equality, fraternity. On the contrary, he glorified the English Revolution (1688) which sought to
reassert the customary rights that Englishmen had enjoyed from very early days and which had found
expression in such documents as the Magna Carta (1215), the Petition of Right (1628), etc.
• Burke’s theory is supported by communitarians and cultural relativists. According to communitarians, the
theory of natural rights is based on concept of abstract individual or atomistic man, whereas man is situated
self. Good is prior to end. According to MacIntyre, “belief in natural rights is like believing in witches and
unicorns”.
• Historical theory of rights is important because it suggests that the state cannot create rights at its own will,
nor is it required to follow abstract and subjective conceptions of natural rights. The state has only to
recognize those rights of men which have already come into vogue through long-standing usage and custom.
• Critic---The difficulty with this theory is that it does not provide for any criterion to ensure that rights are
based on a sense of justice. Many customs, evolved through a long historical process, involve injustice and the
oppression of some vulnerable sections of society. E.g. Slavery, infanticide, polygamy, sati, devadasi, and
untouchability are established in many societies by custom. The State should ban such customs in order to
ensure that rights become vehicles of justice, not of tyranny.
(v) Social Welfare theory of Rights( Roscoe Pound & Zechariah Chafee)
• Social-welfare theory of rights postulates that rights are, in essence, conditions of social welfare.
• The state should set aside all other considerations and recognize only such rights as are designed to promote social
welfare.
• The Utilitarian school of the nineteenth century, led by Bentham, postulated the 'greatest happiness of the greatest number'
as the sole criterion of legislation and recognition of rights. Among the contemporary advocates of social-welfare theory,
Roscoe Pound (1870-1964) and Zechariah Chafee (1885-1957) are the most outstanding.
• Social-welfare theory seems to be quite reasonable because no theory of rights can be held valid until it serves the cause of
social justice. This theory eliminates the subjective, ambiguous, dogmatic and static criteria.
• Critic--This theory presents practical difficulties with few questions like:
✔ who will define social welfare or social expediency? The probable answer could be a chosen elite——who assume the
power to interpret the requirements of social welfare. This could lead to elitism in policy making or deciding the welfare
norms.
✔ Also it needs to be understood that Bentham's formula of the 'greatest happiness of the greatest number' was in effect
invoked to create rights suited to a 'free market society' which resulted in the oppression of the working class.
Thus, the social-welfare theory of rights should be considered a relative theory.
Social-welfare theory of rights found a reasoned and elaborate expression in social-democratic perspective on rights.
2) Modern theory of Rights
Social Democratic Perspective of Right (Laski)
• Social-democratic perspective on rights seeks to achieve the objectives of individual liberty and social justice
together.
• It is best represented by Laski's theory of Rights.
• Harold J. Laski (1893-1950) made an "Every State is known by the rights that it maintains. Our method
of judging its character lies, above all, in the contribution that it makes to the substance of man's
happiness.“- important observation on the significance of rights: ---The performance of the state is judged on
the basis of contribution made by the state to the human welfare and happiness.
• According to them, the social order that is not based on claims of individuals is based on sand.
• He therefore evolved a theory of the 'service state' and produced a rather elaborate blueprint of a just society.
• In this regard, he tries to synthesize liberal and socialist values----How?
As a liberal thinker, Laski is a great champion of liberty. In this process he attacks the foundations of the
capitalist system, but rejects the Soviet-type socialist system for its suppression of liberty. He is convinced that
the democratic structure can be effectively used to secure a synthesis of liberal and socialist value.
• In his The Dilemma of Our Times (1952), Laski has strongly argued that liberty, which is the essence of
rights, is neither perfectly secure in a capitalist democracy like America, nor in a socialist dictatorship like
Russia. It is the rigidness of the two systems which is responsible for crushing one or the other vital aspect of
individual liberty.

• Laski, therefore, pleads for establishing a 'service-state'—where industrial production is undertaken in order to
meet the social needs, not for private profit. He is inclined to suggest a socialist solution: “Either the State
must control industrial power in the interest of its citizens, or industrial power will control the State in the
interests of its possessors. The first need of the masses is to realize the right to adequate payment for their
effort. The first principle, therefore, of industrial organization is a system of institutions directed to that end.”
IV) Three Generation of Rights
• The problem of human rights emerged as a matter of serious concern for the whole world after the Second
World War (1939-45).
• In 1948 the United Nations issued an elaborate list of human rights, known as 'Universal Declaration of Human
Rights’
(V) Human Rights

UPSC Mains PYQ

1) Human rights are complex and contested social practice that organizes relations between
individual, society, and the State. Comment. (2022)

2) Can there be universal conception of human rights? Give your arguments. (2021)

3) What do you understand by three generations of Human Rights? (2018)

4) "The implementation of human rights is regarded as a matter of changing the conduct of

States." Comment. (2016)

5) Analyze the relationship between natural rights and human rights. (2013)
Ques/- Analyze the relationship between natural rights and human rights. (2013)
Ans: The idea of human rights is closely related to that of natural rights: some acknowledge no difference
between the two, regarding them as synonymous, while others choose to keep the terms separate.

Basic difference between the two could be:

• Standard interpretations of human rights (such as the Universal Declaration of human Rights) are broader and
incorporate rights, such as the right to education, which are not seen in explanations of natural rights. Natural
rights, such as Locke’s Life, liberty and property seem to be more limited in scope than human rights.
• Natural rights were traditionally viewed as exclusively negative rights, whereas human rights also comprise
positive rights.
However, some natural rights are exhibited within the well established human rights e.g. Right to life,
liberty----The 1948 United Nations Universal Declaration of Human Rights is an important legal instrument
enshrining one conception of natural rights into international soft law.
(VI) Debates on human rights

• Theoretical Debates:

✔ Definition of humans

✔ When human life begins?

✔ Who should be the guardian of human rights?

 • Philosophical debates regarding Hunan Rights

✔ Value pluralists
✔ Cultural relativists
✔ Multiculturalists

UPSC Mains Question

1) Examine the multi-cultural perspectives on rights. (2012)

(VII) Criticism