Concept of Rights

Introduction

Rights are called social claims, which help individuals attain their best selves and help them develop their personalities. If democracy is to be a government of the people, it has to exist for them.

Such a democratic government can best serve the people if it maintains a system of rights for its people. States never give rights; they only recognize them; governments never grant rights; they only protect them.

Rights emanate from society, from peculiar social conditions, and, therefore, are always social. Rights are individual rights; they belong to the individuals; they exist for the individuals; they are exercised to enable them to develop their personalities fully.

Rights: Meaning and Nature

The relationship between the states and the individuals has been an important question of political theory, one that has baffled, if not confused, political philosophers for ages.

Political philosophers have debated who, whether the state or the individual, is more important and who owes what to whom. Some philosophers, like Plato, believe that the state alone can give justice and that the individual’s job is to do his duties to the best of their abilities and capacities. We call these philosophers idealists.

There are others, John Locke, for example, who believe that the state as a means exists for an end, and the end is the individual, meaning that individual rights are sacrosanct and inviolable. That individuals have rights is a phenomenon of the modern age as it began in the 15th-16th centuries Europe. These rights are guarantees against state absolutism and, therefore, their origin in society are things that became known in the modern age alone.

Rights belong to the individuals; therefore, they are not of the state. Rights are individuals’ rights; therefore, they are conditions necessary for their development. Rights are the products of our social nature and, as such, the result of our membership in society.

Rights, Claims and Powers

Rights are indeed claims, but every claim is not a right. A claim is not a right if it is not recognized; it is not a right if it is not enforced. Claims not recognized are empty claims; claims not enforced are powerless claims. Claims become rights when recognized by society; they become rights when maintained and enforced by the state.

Rights are not merely claimed; they are social claims. They are not claims, but they are like claims. This means that claims that are social in nature alone are rights.

Rights as social claims presuppose the existence of society. There are no rights (i.e., social claims) where there is no society. To talk about natural rights in the state of nature, as the advocates of the social contract theory claimed, is only a misnomer.

Rights as social claims are rights because they are social; they exist in society, because society exists and because society alone grants them, and society grants them to those who are its members.

Rights are social claims given to individuals as members of society and are in the form of rewards in response to the duties the individuals have performed. Rights are social because their claims stand to strengthen society, and accordingly, rights are never against society. There are no anti-social rights.

Rights as social claims have to have another requisite. They are to be maintained, enforced, and protected. Here, the state’s institution has a definite role to play. It is society, not the state, that rewards individuals after having performed their duties with their rights.

The state maintains the framework of rights in society by providing them to one and all; the state protects individuals’ rights in their interests and against encroachments by executive authorities, other individuals or groups of individuals.

Rights are social claims; they are not powers. Rights and powers have to be distinguished. Nature has given every individual a certain amount of power to satisfy their needs.

Power is a physical force; it is sheer energy. Based on mere force, no system of rights can be established. If a person has power, it does not necessarily mean he has a right. They have a right as a member of society – as social beings.

An isolated person has no rights; what they have is energy, physical force, and process. As individuals, we have powers; as social beings, i.e., as members of society, we have rights. Likewise, as isolated individuals, we have no rights, and as social beings, we have no power – no right to say, do, or act the way we want.

Our existence as members of society alone ensures our rights. Rights are rights when others recognize them as such. They are the powers recognized as socially necessary for individuals.

To Quote Hobhouse: 

Rights are what we may expect from others and others from us, and all genuine rights are conditions of social welfare. Thus, the rights anyone may claim are partly necessary for fulfilling the function that society expects from him. They are conditioned by, correlative to, their social responsibilities.

Rights arise from individuals as members of society. They arise from the recognition that there is an ultimate good that may be reached by the development of the powers inherent in every individual.

Rights are social claims of the individuals eventually recognized and lawfully maintained. Apart from society, there are no claims that individuals can ask for. Apart from the state, there are no individuals’ rights whose protection can ever be expected. Society gives us rights, and the state protects them.

Meaning of Rights

Rights are claims, social claims that are necessary for the development of human personality. They are not entitlements a person is possessed with. In ancient and medieval times, some people were entitled to enjoy privileges. But to these privileges, nobody could give the name of rights. Rights are not privileges because they are not entitlements.

There is a difference between rights and privileges; rights are our claims on others, as are others’ claims on us; entitlements, on the other hand, are privileges granted to some and denied to others. Rights are universal because they are assured to all; privileges are not universal because few possess them.

Rights are given to all without any discrimination; privileges are given to some, the selected few. Rights are obtained as a matter of right; privileges as a matter of patronage. Rights emanate in democratic societies; privileges are features of undemocratic systems.

Different definitions of rights touch but a partial aspect of what rights are. Jefferson’s declaration that men are endowed by their creator with certain inalienable rights indicated the naturalness of rights, i.e., men have rights because they are, by nature, human beings. That men (including women) have rights or that they should have rights is a fact no one would like to dispute. But this fact does not state anything more or less than that.

There is no definition stated in this fact. Holland defines rights as “one man’s capacity of influencing the actions of others, not by his strength but by the strength of the society.”

His definition describes rights as a man’s activities blessed by a society which means that Holland only describes rights as a social claim. There are other rights aspects in a definition of rights that have not been given due place.

In his definition of rights, Wilde gives a casual treatment to the social claim aspect when he says: “A right is a reasonable claim to freedom in the exercise of certain activities.”

Harold Laski and Bosanquet, in their definitions of rights, include the positions of society and state and man’s personality, but they, too, ignore the important aspect of ‘duty’ as a part of ‘rights.’ Bosanquet says: “A right is a claim recognized by society and enforced by the state.”

According to Harold Laski, “Rights are those conditions of social life without which no man can seek, in general, to be himself at his best.” 

A working definition of rights should involve certain aspects. Among these, the social claim aspect means that rights originate in society; therefore, there are no rights before society, above society, and against society.

Another aspect of rights is ‘the development of personality aspect which means that rights belong to the individual and they are an important ingredient that helps promote one’s personality – this aspect includes the individual’s right to oppose the government if the latter’s action is contrary to the individual’s personality.

Furthermore, the definition of rights must include the state’s role in the rights framework. This aspect emphasizes that the state does not grant rights; it only maintains them.

Harold Laski said that a state is known by the rights it maintains. Rights are rights because they are politically recognized. Rights are socially sanctioned claims as they are preceded by duties an individual has as a member of society. Duties came before rights and not after them.

In this sense, duties are before rights, which makes rights limited in their nature and exercise. There are no absolute rights: absolute rights are a contradiction in terms.

As Raphael rightly asserts, the distinction between rights as ‘liberties’ and rights as ‘claims’ has become important to social and political theory.

Nature of Rights

It is easy to identify what lies at the roots of rights based on what has been previously discussed. The nature of rights is hidden in the very meaning of rights.

Rights are not only claimed; they are like claims. Rights are claims, but all claims are not rights. Rights are those claims which are recognized as such by society. Without such recognition, rights are empty claims. Society is organized in character, and an individual obviously cannot have any right apart from what society concedes.

Why are Rights Social?

There are the following points that explain; why rights are social;

• They are social in the sense that they emanate from society at any given point in time.
• They are social because they are never, and in fact, can never be, anti-social. 
• They are social because they had not existed before the emergence of society.
• They are social because they can not be exercised against the common good perceived by society.

Rights, as social claims, create conditions necessary for developing human personality. These conditions are created; they are made and they are provided. The state, distinct from society, creates, provides, and makes these conditions. By creating suitable conditions, the state makes rights possible.

It, therefore, lays down a ground where rights can be enjoyed. It is not the originator of rights but is only the protector and defender of rights. It is not within the

jurisdiction of the state to ‘take’ away from the rights of the individual. Suppose the state fails to maintain rights in conditions necessary for individuals’ development. In that case, it forfeits its claim to its allegiance.

Rights are responses to the society where they exist. The contents of rights largely depend on the custom and ethos of society at a particular time and place. As society and its conditions change, so change the contents of rights. It is in this sense that we say that rights are dynamic. No list of rights which are universally applicable for all times to come can ever be formulated.

Rights are responses to what we do. They are like ‘returns’ or ‘rewards.’ They are given to us after we have given something to society, to others. It is after ‘owing’ that we’ own.’ Rights are not only the returns of our duties but also correspond to what we perform. Rights are the rewards given to us by others in response to the performance of our duties towards others.

Rights are not absolute. The welfare of the individuals as members of society lies in a compromise between their rights as individuals and the interest of the society to which they belong. A list of rights must acknowledge that there cannot be such a thing as absolute as uncontrolled, for that would lead to anarchy and chaos in society.

Theory Of Rights

Numerous rights theories explain rights’ nature, origin, and meaning.

The theory of natural rights describes rights as nature; the theory of legal rights recognizes rights as legal; the historical theory of rights pronounces rights as products of traditions and customs; the idealistic theory, like the theory of legal rights, relates rights only with the state; the social welfare theory of rights regards rights as social to be exercised in the interest of both the individual and the society.

The development of rights as having come to us had a modest beginning: civil rights with the contractualism rights as the outcome of traditions, with the historicists, rights as ordained by law, with the jurists; political rights, with the democrats; social rights, with the sociologists and the pluralists; socio-economic rights, with the socialists and the Marxists; human rights, with the advocates of the United Nations. This explanation oversimplifies what our rights are and how they came to us.

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). After providing the social contract theory, this contractualism holds the view that men in the state of nature possessed natural rights and that these rights were attributed to individuals as if they were the essential properties of men as men. Contractualism, therefore, declared that the rights are inalienable, imprescriptable, and indefeasible.

The theory of natural rights is criticized on many grounds. Rights cannot be natural simply because they were the possessions of men in the state of nature. There could never be rights before the emergence of society: the notion of pre-society rights is contradictory. If at all there was anything in the state of nature, they were mere physical energies and not rights.

Rights presuppose the existence of some authority to protect them. In a state of nature where no state existed, how can one imagine rights without a state: who would defend people’s rights in the state of nature? Contractualism has no answer. To say that natural rights exist in the state of nature is to make them absolute or beyond the control of society.

For Jeremy Bentham, the doctrine of natural rights was rhetorical nonsense upon stilts.’ Harold Laski also rejects the whole idea of natural rights. Rights, as natural rights, are based on false assumptions that we can have rights and duties independently of society.

Edmund Burke had pointed out, rather eloquently, when he said that we could not enjoy the rights of civil and uncivil states simultaneously: the more perfect the natural rights are in the abstract, the more difficult it is to recognize them in practice.

Rights are natural, and not that there are natural rights, in the sense that they are the conditions that human beings need to realize themselves.

Harold Laski realizes the significance of rights when he says that rights ‘are not natural in the sense that a permanent and unchanging catalog of them can be compiled, rather they are natural in the sense that under the limitations of civilized life, facts demand their recognition.’

Theory of Legal Rights

The theory of legal rights or the legal theory of rights connotes the same sense. 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 for the theory of legal rights. Among the advocates of such theories, the names of Jeremy 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 essential features of these theories, then, are:

1. The state defines and lays down the bill of rights: rights are neither prior nor anterior to the state because it is the state which is the source of rights. 
2. The state lays down a legal framework that guarantees rights and that it is the state which enforces the enjoyment of rights and
3. As the law creates and sustains rights, so when the content of the law changes, the substance of rights also changes.

The theories that point out rights originated from the state are criticized in numerous ways. The state defends and protects our rights; it does not create them as the advocates of these theories make us believe.

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. Such an opinion would make the state absolute. In that case, we would have only those rights the state would like to give us.

The 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 conservative Edmund Burke argued while throwing his weight to the prescriptive theory that people have a right over anything they exercise or enjoy uninterruptedly over a fairly long time. So considered, every right is based on the force of long observance.

As traditions and customs stabilize owing to their constant and continuous usage, they take the shape of rights. The theory has its origins in the eighteenth century in Edmund Burke’s writings and was later adopted by sociologists.

The historical theory of rights is important because it condemns the legal theory of rights.

It is also important in so far as it denies the theory of natural rights. The state recognizes the advocates of the historical theory of rights and argues what (the rights including) stays through long usage.

The historical theory of rights suffers from its 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. For example, the right to social security is not related to any customs.

The Social Welfare Theory of Rights

The social welfare theory of rights presumes that rights are social welfare conditions.

The theory argues that the state should recognize only such rights to help promote social welfare. Among the modern advocates of the social welfare theory, the name Roscoe Pound and Chafee can be mentioned, though Jeremy Bentham can be said to be its advocate of the 18th century.

The theory implies that rights are the creation of the society in as much as they are based on the consideration of common welfare: rights are the conditions of the social good which means that claims are not in conformity with the general welfare and, therefore, not recognized by the community do not become our rights.

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’s greatest good of the greatest number differs for 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.

A critic like Wilde believes that ‘if the consideration of social expediency creates rights, the individual is without an appeal and helplessly dependent upon its arbitrary will.’

The Marxist Theory of Rights

The Marxist theory of rights is understood in terms of the economic system at a particular period of history. A particular socio-economic formation would have a particular system of rights.

The state, being an instrument in the hands of the economically dominant class, is itself a class institution. The law it formulates is also a class law. So considered, the feudal state, through feudal laws, protects the system of rights (privileges, for example), favoring the feudal system.

Likewise, the capitalist state, through capitalistic laws, protects the system of rights favoring the capitalist system. The Marxists argue that securing rights for all in a class society is not the object of the class state; rather, it aims to protect and promote the interests of the class that wields economic power.

According to Karl Marx, the class which controls the economic structure of society also controls political power, which it uses to protect and promote its own interests rather than the interests of all.

In the socialist society which follows the capitalist society, as the Marxian framework suggests, the socialist state, through the proletarian laws, would protect and promote the interests/rights of the working class. As the socialist society, unlike the capitalist society, is a classless society, its state and laws protect the rights not of any particular class but all the people living in a classless society.

The Marxists say that the socialist state, as an instrument of social and political and economic change, would seek to establish socialism which will be based on the principle of ‘from each to his ability to each according to his work,’ the system of rights for all would follow this pattern: economic rights ( social security, work) first, followed by social rights (education) and political rights (franchise rights).

The Marxist theory of rights, like Marxism itself, suffers from its deterministic ideology, though its emphasis on a non-exploitative socialist system is its characteristic feature. Neither the economic factor alone provides the basis of society, nor is the superstructure the reflection of only the economic base, for non-economic forces, also play their role in determining the superstructure.

Framework Of Rights

Rights are the essential conditions of human personality. The development of human personality depends on the system of rights available to individuals. Different state systems recognize different rights: rights available to the Americans would be different from those available to the Indians.

A liberal-democratic society would give priority to different rights than a socialist society. That is why we have a classification of rights: moral and legal; legal into civil, political, economic, and social. Rights incorporated in the constitution of the land are called fundamental rights.

Rights, being basic conditions necessary for the development of human personality, have to be made available to the individuals of all the states. The UN Declaration of Human Rights is an inspiration and a plan for the states to recognize and maintain their respective people.

Rights of the People

A general framework of the major rights available to the people can be briefly summed up as under: the right to life is a basic right without which all other rights are meaningless. This right means that the state guarantees the protection of life and protection against any injury: even suicide is considered a crime.

The right to equality has numerous aspects:

• Equality before the law
• Equal protection of the law
• The prohibition of any sort of discrimination: social, economic, or political

Protective discrimination, as enshrined in the Constitution of India, is integral to the right to equality.

The right to freedom, like the right to equality, has several aspects: freedom of speech, of the press, assembly, association, movement, residence, and adopting a vocation. That these freedoms are to be exercised within reasonable restrictions has been the characteristic feature of this right granted to the Indians by the constitution.

The right to freedom of religion, conscience, and faith is another right available to individuals.

Religion is a matter of faith, the voice of one’s conscience and, as such, is given to the citizens in the present-day states. This right does not curtail secularism as religion is accepted as something personal, and religion and public life are not allowed to intermix.

The right to education is another important right without which the development of man’s personality becomes impossible. An uneducated man cannot lead a meaningful life. Illiteracy, being a social curse, should be reduced/removed. The state should take up the responsibility of promoting education.

Economic rights include the right to work, social security, rest, and leisure. With work and material security, an individual cannot enjoy the fruits of other rights.

The right to property, too, is an economic right which means the right to possess and inherit property. It is regarded as an important right in liberal democracies.

There are political rights of the individuals. It is these rights that make individuals full-fledged citizens. Among these, the right to franchise, to contest elections, to hold public office, and to form political parties are some which need mention.

The Constitution of India provides a list of rights to its citizens. These are called the fundamental rights (Article 12-35), and these include the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies – the last one is an important right in so far as this right ensures guarantees for all the other rights.

The liberal-democratic systems ensure the importance of political rights over social rights and social rights over economics. The order is reversed in socialist societies: economic rights, social rights, and political rights. For a liberal democrat, the right to freedom is more important than the right to equality; the right to property is more important than the right to work; economic security is more important than economic equality.

Economic rights in such societies are reduced to the right to protection of property, workable equality within the framework of the private property system, not being exploited by the employer and an unemployment allowance.

In socialistic societies, the right to work precedes the right to education; the right to education precedes the right to hold an independent opinion.

Laski’s Theory of Rights

Harold Laski (1893-1950), a theoretician of the English Labour Party and a Political Scientist in his own right, has his definite views on the system of rights as expounded in his A Grammar of Politics (first published in 1925 and then revised almost every second year).

Harold Laski’s views on the nature of rights run as follows: 

• They are social conditions given to the individual as a member of society.
• They help promote individual personality, his best self: ‘those social conditions without which no man can seek to be his best self.
• They are social because they are never against social welfare; they were not there before the emergence of society.
• The state only recognizes and protects rights by maintaining them.
• Rights are never absolute: absolute rights are a contradiction in terms.
• They are dynamic. So far as their contents change according to place, time, and conditions and
• They go along with duties; in fact, duties are before rights; the exercise of rights implies the exercise of duties.

If Harold Laski were to give rights to the individual, he would give them in this order: the right to work, right to be paid adequate wages, right to reasonable hours of labor, right to education, the right to choose one’s governor, followed by other rights.

Harold Laski argues that without granting economic rights first, an individual cannot enjoy his political rights: political liberty is meaningless without economic equality: ‘where there are great inequalities, the relationship between men is that of the master and the slave.’ 

Equally important, but lower in order, is the right to education: education alone helps an individual exercise these other rights properly. With the economic and social (education rights) at one’s disposal, there is a greater likelihood of the individual exercising his political rights in the right earnestness.

Theory of Human Rights

S. Ramphal has very rightly stated that human rights were not born of men, but they were born with them. They are not as much a result of the efforts of the United Nations as emanations from basic human dignity. They are human rights because they are human beings as human beings.

Human rights may generally be defined as those rights which are inherent to our nature and without which we cannot live as human beings. They are essential because they help us to use and develop our faculties, talents, and intelligence. They base themselves on humankind’s increasing demand for a life in which the inherent dignity and worth of each human being will receive protection and respect.

Human rights lie at the root of all organizations. They permeate the entire UN charter. In the preamble of the UN Charter, there is a determination to affirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and the nations, small and large. There is a reference to the promotion of universal respect for Human Rights in the Charter’s Articles 13, 55, 62, 68, and 76.

The Commission on Human Rights, working under the UN Economic and Social Council, after spending about two and a half years under the chairmanship of Roosevelt, drafted what is known as the Universal Declaration of Human Rights. When the UN General Assembly approved this declaration on December 10, 1948, the day came to be celebrated as Human Rights Day.

Among the 30 articles that are a part of the Declaration of Human Rights, there is a list of traditional rights from articles 3 to 15. These rights include the right to life, liberty, security, freedom from arbitrary arrest, a fair trial, equal protection of the law, freedom of movement, nationality, seeking asylum, etc.

There are other important rights contained in articles 16 to 21. These include equal rights to men and women, to marry, to form a family, to property, basic freedom such as thought and expression, the right to peaceful assembly and association, and a share in the government of one’s own country.

There are economic rights enshrined in articles from 22 to 27. These include the right to work, protection against unemployment, just remuneration, right to form trade unions, right to have rest and leisure, an adequate standard of living, education, and participation in the country’s cultural life.

Articles 28, 29, and 30 ensure social/international order, duties towards the community wherein the free and full development of man’s personality is possible, and the guarantees of these rights, respectively.

The Universal Declaration of Human Rights is the first segment of the International Bill of Human Rights. It is followed by the International Covenant on Economic, Cultural and Social Rights, the International Covenant on Civil and Political Rights and the Optional Protocol – all adopted in 1966.

Conclusion

Rights are social claims necessary for the development of human personality. These belong to the individuals and provide conditions without which they cannot seek to be themselves.

They are social: given by society and secured by the state. Even the state cannot take them away from the individuals. They reflect a particular stage of the development of society.

As society changes, so do the character and content of rights. Regarding rights, theories reflect the partial treatment of their meanings, origin, and nature. The theory of natural rights is correct so long as it emphasizes that rights are natural because they are like social claims. Likewise, the legal theory of rights speaks the truth in so far as it makes the state the guarantor of our rights.

Rights are of numerous kinds. Those rights available to human beings include the right to life, equality, the security of persons and property, education, work, freedom, freedom of religion, to vote, and to hold public office.

Liberal democratic societies emphasize personal and political rather than economic and social rights. The socialist societies advocate the opposite arrangement of rights.

As a liberal-leaning toward the Left, Harold Laski considers rights essential for individual development but grants economic rights followed by social and political rights.

The UN Declaration of Human Rights provides for a list of basic rights available to human beings as human beings.