RIGHTS
Mr. M K Reddy
WHAT ARE RIGHTS?
A right is essentially an entitlement or a justified claim.
It denotes what we are entitled to as citizens, as individuals and as human beings.
It is something that we consider to be due to us; something that the rest of society must
recognise as being a legitimate claim that must be upheld.
There is a distinction between what I want and think I am entitled to, and what can be
designated as rights.
Rights are primarily those claims that I along with others regard to be necessary for leading a
life of respect and dignity.
In fact, one of the grounds on which rights have been claimed is that they represent conditions
that we collectively see as a source of self and dignity.
This right gives us the opportunity to be creative and original, whether it be in writing, or dance,
or music, or any other creative activity.
But freedom of expression is also important for democratic government since it allows for the
free expression of beliefs and opinions.
Rights such as the right to a livelihood, or freedom of expression, would be important for all
human beings who live in society and they are described as universal in nature.
Another ground on which rights have been claimed is that they are necessary for our well-
being.
They help individuals to develop their talents and skills.
A right like the right to education, for instance, helps to develop our capacity to reason, gives
us useful skills and enables us to make informed choices in life. It is in this sense that education
can be designated as a universal right.
WHERE DO RIGHTS COME FROM?
In the seventeenth and eighteenth centuries, political theorists argued that rights are
given to us by nature or God.
The rights of men were derived from natural law.
This meant that rights were not conferred by a ruler or a society, rather we are born with
them.
As such these rights are inalienable and no one can take these away from us.
They identified three natural rights of man: the right to life, liberty and property.
All other rights were said to be derived from these basic rights. The idea that we are born with
certain rights, is a very powerful notion because it implies that no state or organisation should
take away what has been given by the law of nature.
This conception of natural rights has been used widely to oppose the exercise of arbitrary
power by states and governments and to safeguard individual freedom.
The assumption behind human rights is that all persons are entitled to certain things
simply because they are human beings. As a human being each person is unique and
equally valuable.
This means that all persons are equal and no one is born to serve others. Each of us possesses
an intrinsic value, hence we must have equal opportunities to be free and realise our full
potential.
conception of a free and equal self is increasingly being used to challenge existing
inequalities based on race, caste, religion and gender.
Today, the UN Declaration of Human Rights builds upon this understanding of rights
and it attempts to recognise those claims that the world community collectively sees as
being important for leading a life of dignity and self-respect.
We are very conscious today of the need to protect the natural environment and this has
generated demands for rights to clean air, water, sustainable development, and the like. A new
awareness about the changes which many people, especially women, children or the sick, face
in times of war or natural crisis has also led to demands for a right to livelihood, rights of
children and the like.
LEGAL RIGHTS AND THE STATE
This is why so much importance is placed on the legal recognition of rights.
A Bill of Rights is enshrined in the constitutions of many countries.
Constitutions represent the highest law of the land and so constitutional recognition of certain
rights gives them a primary importance.
In our country we call them Fundamental Rights. Other laws and policies are supposed
to respect the rights granted in the Constitution. The rights mentioned in the Constitution
would be Rights those which are considered to be of basic importance.
So important is the legal and constitutional recognition of our claims that several theorists
define rights as claims that are recognised by the state.
Thus, rights place an obligation upon the state to act in certain kinds of ways. Each right
indicates what the state must do as well as what it must not do.
To put it another way, our rights ensure that the authority of the state is exercised without
violating the sanctity of individual life and liberty.
The rulers are accountable for their actions and must not forget that law exists to ensure
the good of the people.
Main concepts
Nature of Human rights:
Human rights are those rights to which an individual is entitled by virtue of his status as a
human being. While civil, political and social-economic rights are dependent on an individual's
status as a citizen of a particular state, his human rights are not determined by this condition.
Human rights constitute the very source of all rights of human beings.
MEANING OF RIGHTS
The idea of rights provides for an essential tool of analysis of the relations between individual
and the state.
In other words, when the state is regarded as a means, and the individual as the end, the state
cannot be armed with absolute authority over individual. If the state claims authority, individual
must claim rights.
Rights essentially belong to the sphere of conflicting claims between individual and the
state.
Thus, Thomas Hobbes (1588-1679), J.J. Rousseau (1712-78) and G.W.F. Hegel (1770- 1831)
may have paid rich tributes to the state, in their own ways, for creating congenial conditions
for the happiness of men, but they have failed to evolve any concept of rights.
If there are no rights to curb the authority of the government and to prescribe functions
of the government, the state assumes unbridled power. It may soon degenerate into
absolutism, authoritarianism, despotism and tyranny.
Glorification of the state, without an in-built mechanism to curb authority of the state means
complete subordination of individual to the ruler or the ruling groups, thereby opening the
floodgates of corruption, oppression, exploitation and injustice.
The concept of rights or 'human rights', therefore, originates from the voice of protest against
oppression perpetrated by the dominant groups in society.
Rights are meant to safeguard the individual from the irresponsible and arbitrary use of power
by the ruling class.
In a nutshell, rights consist in claims of individuals which seek to restrict arbitrary power of
the state and which are required to be secured through legal and constitutional mechanisms. In
addition, these may include some benefits which the state may extend to its citizens to improve
the quality of their life.
Conventional theories of rights seek to identify the basis on which the familiar rights of
human beings are founded. Of these the following are particularly important:
(a) theory of natural rights;
(b) theory of legal rights;
(c) historical theory of rights; and
(d) social-welfare theory of rights.
THEORY OF NATURAL RIGHTS:
The theory of natural rights has been advocated mainly by Thomas Hobbes (Leviathan, 1651),
John Locke (Two Treatises on Government, 1690) and J.J. Rousseau (The Social Contract,
1762). These contractualists, after having provided the social contract theory, hold the view
that there were natural rights possessed by men in the state of nature and that these rights were
attributed to individuals as if they were the essential properties of men as men. The
contractualists, therefore, declared that the rights are inalienable, imprescriptable and
indefeasible.
In other words, these rights are not granted by the state, but they come from the very nature of
man, his own intrinsic being.
Among the exponents of the social contract theory, John Locke (1632-1704) is the most
ardent champion of natural rights.
Hobbes draws a gloomy picture of the state of nature and deprecates natural rights as the
freedom of the stronger to oppress the weaker. He therefore postulates an unconditional
surrender of natural rights when civil society is formed.
J.J. Rousseau (1712-78), another exponent of the social contract theory, depicted natural rights
in a different light. Rousseau draws a fascinating picture of the state of nature and glorifies
natural rights.
Tom Paine (1737-1809) in his Rights of Man (1791) enunciated the theory of natural rights on
teleological basis. Paine rejected the doctrine of the social contract as it was 'eternally binding,
and hence a clog on the wheel of progress'. He insisted that every generation should be free to
think and act for itself. But rights to 'liberty, property, security and resistance of oppression',
which are the proud possessions of man in civil society, derive their sanction from the natural
rights 'pre-existing in the individual'.
T.H. Green (1836-82) also sought to build his theory of moral rights on the teleological basis.
Green argues that the rights of man do not emanate from a transcendental law as Locke had
maintained, but they come from the moral character of man himself. Each individual, impelled
by his moral consciousness, tends to seek ideal objects. Since all individuals share the same
moral consciousness, their ideal objects are common objects. Thus, when they form the state,
all individuals agree to recognize each other's claim to pursue their ideal objects.
In fact, Green is concerned with ideal rights, not with legal rights. Ideal rights derive their
sanction from the inherent moral propensity of man, not from the 'force' of the state.
EVALUATION:
The theory of natural rights played an important role in modern history. It served as a
source of inspiration for the American and French Revolutions.
The American Declaration of Independence (1776) expressed this idea as follows: 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 these are Life, Liberty and the pursuit of
Happiness. That to secure these rights, Governments are instituted among Men, deriving their
just powers from the consent of the governed. That whenever any Form of destructive of these
ends, it is the Right of the People to alter or to abolish it, and to institute new Government,
laying its foundation on such principles and organizing its powers in such form, as to them
shall seem
most likely to affect their Safety and Happiness.
Similarly, the French Declaration of the Rights of Man and of the Citizen (1789) expressed
the idea as under: Men are born and remain free and equal in rights. Social distinctions can be
based only upon public utility . . .The aim of every political association is the preservation of
natural and imprescriptible rights of man. These rights are liberty, property, security and
resistance to oppression.
Criticism:
Their interpretation depends on the nature and degree of the prevailing social consciousness. It
is because of these limitations that 'natural rights' are now rarely invoked for building up a
rational system of rights in contemporary society. Modem states as well as international
organizations and movements widely invoke 'human rights', instead of natural rights, to
determine their policy objectives or goals.
THEORY OF LEGAL RIGHTS:
The idealist theory of rights which seeks to place rights as the product of the state can be, more
or less, seen as another name of the theory of legal rights.
Among the advocates of such theories, the names of Bentham, Hegel and Austin can be
mentioned.
According to them, rights are granted by the state, regarding rights as a claim which the force
of the state grants to the people.
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.
Rights are relative to the law of the land; hence they vary with time and space.
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.
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.
Jeremy Bentham (1748-1832) is the greatest champion of the theory of legal rights. He
rejects the doctrine of natural rights as unreal and ill-founded.
Criticism:
Harold J. Laski, in his A Grammar of Politics (1938), criticized the theory of legal rights. In
other words, the theory of legal rights takes account of the factual position only; it takes note
of what rights are legally recognized and guaranteed in a particular state.
If we admit that the rights are the creation of the state, we will have to accept the view that if
the state can give us rights, it can take them away as well. Obviously, such an opinion would
make the state absolute. In that case, we would have only those rights which the state would
like to give us.
HISTORICAL THEORY OF RIGHTS
The historical theory of rights, also called the prescriptive theory, regards the state as the
product of a long historical process. It holds the view that rights grow from traditions and
customs.
The theory has its origins in the 18th century in the writings of Edmund Burke and was adopted
later by the sociologists.
The historical theory of rights is important in so far as it condemns the legal theory of rights.
It is also important in so far as it denies the theory of natural rights.
The state recognises, the advocates of the historical theory of rights argue, what (the
rights including) comes to stay through long usage.
Rights grow out of custom which stabilized through usage in several generations.
Criticism:
The historical theory of rights suffers from its own limitations. It cannot be admitted that all
our customs result in rights: The Sati system does not constitute a right nor does infanticide.
All our rights do not have their origins in customs. Right to social security, for example, is not
related to any custom.
SOCIAL-WELFARE THEORY OF RIGHTS
The social welfare theory of rights presumes that rights are the conditions of social welfare.
The theory implies that rights are the creation of the society in as much as they are based on
the consideration of common 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.
Criticism:
The social welfare theory of rights is also not without its faults.
It dwells on the factor of social welfare, a term too vague to be precise.
The Benthamite formula ‘greatest good of the greatest number’ is different to different people.
The theory turns out to be the legal theory of rights if, in the end, the state is to decide what
constitutes ‘social welfare’.
Civil Rights:
In contemporary political thought, the term ‘civil rights’ is indissolubly linked to the struggle
for equality of African Americans during the 1950s and 1960s.
The aim of that struggle was to secure the status of equal citizenship in a liberal
democratic state.
Civil rights are the basic legal rights a person must possess in order to have such a status.
They are the rights that constitute free and equal citizenship and include personal, political,
and economic rights.
No contemporary thinker of any significance holds that such rights can be legitimately denied
to a person on the basis of race, colour, sex, religion, national origin, or disability.
Until the middle of the 20th century, civil rights were usually distinguished from ‘political
rights.’ The former included the rights to own property, the rights to make and enforce
contracts, the right to legal recourse and the right to one’s religion. Civil rights also covered
freedom of speech and of the press; but they did not include the right to hold public office,
vote, or to testify in court. The latter were political rights, reserved for adult males.
The claims for which the American civil rights movement in the 1950s and 1960s initially
fought belong to the first generation of civil rights claims. Those claims included the 18th-
century set of civil rights—such as the right to legal recourse and to make and enforce
contracts—but covered political rights as well. However, many thinkers and activists argued
that these first-generation claims were too narrow to defi ne the scope of free and equal
citizenship. They contended that such citizenship could be realized only by honouring an
additional set of claims, including rights to food, shelter, medical care and employment. This
second generation (19th century) of economic ‘welfare rights’, they argued, helped to ensure
that the political, economic and legal rights belonging to the first generation could be made
effective in protecting the vital interests of citizens and were not simply paper guarantees.
The third generation of claims (20th century) has received considerable attention in recent
years, what may be broadly termed ‘rights of cultural membership’. These include language
rights for members of cultural minorities, and the rights of indigenous peoples to preserve their
cultural institutions and practices, and to exercise some measure of political autonomy. There
is some overlap with the first-generation rights, such as that of religious liberty, but rights of
cultural membership are broader and more controversial.
Social Rights
In civilized states, citizen usually have the following social rights:
1. Right to live: The most important social right is the right to live. Every state gives the right
to live to its citizens. According to Aristotle, state is formed for the security of life and is
working for a good life.
2. Right to Education: Education is very essential for the personality development. Illiterate
person is considered backward or like animal. Without education, he does not know anything
about his rights and duties. It is the duty of the state that it should make proper arrangement for
the education of the citizens. If possible, citizens should be given free and compulsory
education to the citizens.
3. Right to have family: Family is an important unit of society. Man has a right to make family
so every citizen has complete freedom to marry with whom he wants and has complete freedom
to manage his family. But state creates some rules regarding family. Indian Government has
fixed the age for the civil marriage as 21 years for male and 18 years for female. It is to be
noted that consent of both bride and groom is essential for the marriage.
4. Right to speech and expression of thought: Man has freedom to express thoughts for the
development of personality. He can express his thoughts by speech.
J.S. Mill was in favour of giving complete freedom to the individual. According to him, a
person should have complete freedom to express his thoughts, there should be no control on
this freedom. According to his opinion when a man expresses his thoughts, then that thought
can either be completely right or completely wrong or can be some right and some wrong.
5. Right to make institution and gather peacefully: usually, all the countries have given right
to their citizens to make institutions and assemble peacefully. Citizens can use their right to
speech only when they will have the right to assemble peacefully.
6. Right to personal freedom: Right to personal freedom means that a person has a freedom
to develop his personality. Personal freedom also means that a person should not be arrested
or house arrest without any reason.
7. Right to Religious Freedom: Right to religious freedom implies to the fact that every person
is completely free to have faith in whatever religion he wants, to worship whichever god or
goddess he wishes and in whatever manner he wants. State should not interfere in the religious
matters of the citizens. State should not compel the citizens to follow a particular religion. State
should not declare any specific religion as the state religion. Disciples of all the religion should
get equal opportunity for growth. In India this is a constitutional right.
8. Right to Equality: All citizens should have equal rights. Every person should be considered
equal in the state. There should be no disparity in the name of religion, language, colour, caste
or creed among the citizens.
9. Right to move freely: Citizens have right to move freely inside the boundaries of the
country. They can live, or go for tour to any part of the country. Without the freedom to move,
man considers himself imprisoned. Indian constitution has given its citizen freedom to move.
But if any citizen misuses this right then Government can put a ban on his freedom.
10. Right to cultural freedom: Citizens have a right to have faith and to develop their culture.
They can develop their language, customs and morality. Indian citizens have been given this
right by the constitution. Every community has a right to develop their culture.