Rights in Political Theory:
The rights of human beings or the rights of the individuals have long been a subject of political theory. If we look at the history of western political thought we shall find that in ancient Greek city-states the rights as such had no existence.
But the ruling class and upper classes of the city-states were not unaware of rights and this is manifest from the concept of citizenship. In the city-states only a handful of persons were fortunate to be citizens and they enjoyed certain privileges which were rights. The vast majority of the population were not citizens and had no rights.
The concept of rights first appeared in the theory of natural law which existed in the state of nature. In the state of nature people enjoyed certain rights sanctioned by natural law. The natural law, in fact, ruled the society and nobody had any power to violate the natural rights and natural law. It was also maintained that both natural law and natural rights were based on morality.
In other words, both were moral order. Any human authority, what we now calls state or government, had no power to curtail the natural rights or interfere with the natural law. In this way concept of rights came to be associated with political theory because state or government was the part of politics.
The social contract theory makes a distinct contribution to making rights as part of political theory. It was assumed that the people of the state of nature, by virtue of the prevalence of natural law, enjoyed natural rights. But due to certain unavoidable circumstances (the control of which was beyond their ability) they could not make proper utilisation of these rights.
A decision was taken that a civil authority was to be set up whose, inter alia, function would be to take steps for the protection of the natural rights. This approach received further importance in the hands of Locke who assumed that rights were to be viewed in the context of civil society. The main function of the authority of civil society is to protect the rights.
Though natural rights were able to draw attention of large number of people but it received a setback at the hands of utilitarians and Marxists. “Historically, the doctrine of natural rights has suffered from the vagaries of political and intellectual fashion. It was popular in the seventeenth century but suffered at the hands of the utilitarians and Marxists”.
The utilitarian philosopher had no faith on the theory of natural rights. Every right must be viewed in the background of society, state and politics. The utilitarians thus made rights as part of the state. They also thought that it was the duty of state to protect rights or to make arrangements for the protection of the rights.
The Marxists have stepped forward. Rights can only be understood within the context of particular economic and social circumstances. With the rise of the complexities of social structure, its administration and the relation between individuals and state, rights ultimately became integral parts of political theory and prime concern of the state. Specially the latter was the consequence of the rapid growth of democracy.
Today we cannot separate rights from state and politics. The intimate relationship between right, state and law was stridently argued by the philosophers of utilitarianism and this approach laid the foundation of the concept- rights and political theory. From the middle of the nineteenth century this tendency has become prevalent.
Definitions of Rights:
There are many definitions of rights and for our purpose some are stated. One such definition is rights are legal or moral recognition of choices or interests to which particular weight is attached. A person is faced with a number of alternatives or choices and he is to select one or two of them.
This freedom is the central idea of rights. The individual shall have the full freedom to select the required number of alternatives. The system of rights therefore denotes “some sort of distribution of freedom” (Oxford Concise Dictionary of Politics).
The second definition is that rights can be called justified and recognised expectation. It is justified in the sense that when one claims rights there shall be sufficient justification behind the claims and, at the same time, the claims should be recognised. The claims have been termed by L. T. Hobhouse as expectation. It is so people expect them for their betterment. Justification and recognition have landed the expectation (or rights) on a different level. A man’s expectation for ethical right cannot come under the purview of political science.
Thirdly, T. H. Green defines rights in the light of idealism since he was the doyen of English idealist philosophy. He defines the concept of rights: “The capacity on the part of the individual of conceiving a good as the same for himself and others and of being determined to action by that conception is foundation of rights, and rights are the condition of that capacity being realised. No right is justifiable or should be a right except on the ground that directly or indirectly it serves this purpose”.
Andrew Heywood (Political Theory) calls rights as entitlements (emphasis added). Rights are entitlements to act or be treated in a particular way. Modern political thinkers are accustomed to treat rights mainly as entitlements. It is a type of entitlement in the sense that an individual has rights means that he is entitled to have something.
In the present day situation rights have been regarded as rational claims. The environmentalists have challenged the traditional concept of rights. They forcefully argue that every claim made by the individuals must be based on rationality. Human beings cannot kill animals indiscriminately or destroy forest for their own benefit.
These two acts may satisfy their needs but at the same time the killing of animals or destroying forest shall cause an imbalance in nature and ultimately society and succeeding generations will suffer. So the idea of entitlement shall be viewed from modern and wider perspective.
Again, in the age of globalisation the concept of rights is to be properly viewed. While claiming to enjoy rights one must see that whether that claim is about to jeopardies the interests of the other people of the globe. Hence the narrow concept of rights, in modern day, is irrelevant.
Nature of Rights:
There are several features of rights as a concept of political theory:
(1) Norman Barry uses a new term which he calls claim-rights. Let us quote him: “In the more usual sense of the word right it is understood as a type of claim. Claim-rights entitle their holder to limit the liberty of another person.
A has a right against B, deriving either from moral or legal rule, which puts B under a duty. It is not the moral quality of act that entitles A to limit B’s liberty but simply the fact that he possesses the rights……… Claim-rights possessed by persons are quite different from favours or concessions granted to individuals by authorities”.
The claim-rights do not depend upon the mercy of another person. For one reason or other individuals claim rights which means that others will not create any obstructions on the way of enjoying the claim-rights. The implication of this right is individuals claim-right on the ground that the rights are indispensable for the development of personality and the authority is bound to provide such right.
(2) Right is viewed in the sense of liberty, right is liberty. There is a general and popular view that rights imply duties. A man cannot claim/demand rights if he does not perform duties. Rights, in this sense, are correlative to duties or functions. But when rights are interpreted in the background of liberty the doing of duty does not arise at all.
For example, an individual has right of the freedom of speech means that the individual has liberty to open his mouth and mind and if he does so he will face no problem. When rights are understood as liberties, the possession of rights by one person does not entail the restrictions on liberty of another or in the sense of being under a correlative duty. This concept of right denies the traditional relation between right and duty.
(3) Identification of rights as special claims is another characteristic feature of rights. In the period of monarchical absolutism people claimed the right to freedom of speech because it was drastically curtailed by the absolute kings. Not only freedom of speech, but also freedom of thought and action were demanded by people.
In the middle Ages there were conflicts among the various religious groups and in that period many people claimed the right to practise any religious belief and faith. In the nineteenth century, individualism dominated the political scene and rights were viewed negatively. The state interference with the individual’s affairs shall be minimum.
It was the negative approach to rights. In the modern age positive ideas cloaked the idea of rights. It means that Individuals will enjoy rights but at the same time the state should do for the realisation of welfare objectives. It was also felt that this could be done by both the state and the general public. Both should act in tandem.
(4) Sometimes it has been found that there are rights for few and rights for many. For example, the revolutionaries of American Revolution and French Revolution demanded that they were fighting for the general rights of general public.
But after the revolutions it was found that only limited people were able to enjoy the rights. In all class societies only handful of persons enjoys all sorts of rights and majority is deprived of basic rights. In many states special rights are recognised for particular sections of people.
For example, in India the scheduled caste, scheduled tribes and other backward classes enjoy special rights and Constitution recognises these special provisions. We may call this system as special rights for special classes. Side by side there are general rights for general classes or all persons of the state.
(5) Rights are very important no doubt, but individuals alone and without any help from the state cannot enjoy rights. The state must create an atmosphere in which all the individuals will have opportunities to enjoy rights. But the state can do this only on condition that the rights are recognised by the state. Whether the state recognises or not rights are always rights. But this is the conceptual sense of rights.
In reality, people will be in a position to enjoy rights if the state comes forward for their realisation. No rights can exist beyond the jurisdiction of state. People of the state of nature had natural rights, but all of them had not the opportunities to enjoy rights because the state of nature had no enforcing organ.
Recognition of rights by the state has opened the scope of lot of discussion. Why should the state recognise rights? What rights are recognised? Should rights depend on the recognition of state? All these show that recognition by the state is a complicated issue.
(6) For the enforcement of rights law is essential. The state is the enforcing authority and law is the mechanism or instrument. State takes precautionary measures with the help of law. This rights, law and state are all interlinked. In respect of law and right-law performs a double function. It protects the right of some and prevents others from interfering with the rights enjoyed, by others.
Different Aspects of Rights:
The concept of natural rights was elaborately treated by two contract philosophers—Hobbes and Locke in their works. We can define it in the following way: “Rights which persons possess by nature that is without the intervention of the agreement, or in the absence of political and legal institution” (Oxford Concise Dictionary of Politics).
The individuals can have such rights irrespective of time and place. Therefore, time, place, agreement and authority are not the determining factors of the character of natural rights. In the state of nature people had such rights.
Hobbes and Locke concluded that the natural rights, most important of all things of the state of nature, faced serious problems and even their protection was at jeopardy. These two philosophers were determined to protect them and for that reason they devised a mechanism—formation of civil society which will have full power and authority to protect them.
Some thinkers believe that natural rights are some sort of moral rights in the sense that they do not depend for their validity on the enforcement of a legal system. They are a special type of moral rights. Any agreement or authority is not the source of natural rights. Again, such rights need not be recognised by the state because they existed before the origin of state.
Bentham could not tolerate the natural rights. He called them nonsensical. According to Bentham it is impossible to speak of rights without enforceable duties and also recognition. From the history of political thought we come to know that natural rights dominated the political thought and utilitarianism stopped it.
Bill of Rights:
The bill of rights forms a very important part in the history of rights of man and the origin of the bill of rights can be traced to the famous Magna Carta (1215). The bill of rights in general and Magna Carta in particular is a statement of rights of man. Clause 39 of the Magna Carta is very important.
It states: “No free man shall be taken or imprisoned or dispossessed or outlawed or banished or in any way destroyed, nor will we go upon him, nor send upon him except by the legal judgment of his peers or by the law of the land”. Though Magna Carta laid the foundation of bill of rights in England, it was not in the strictest sense the bill of rights; it was an agreement between King John and his barons.
The real origin of the bill of rights is the Act of Parliament of Britain which was passed in 1689 and with which John Locke was closely associated. The Bill of Rights enacted by the British Parliament was primarily concerned with the curtailment of royal prerogatives and asserting the right of legislature. It was also concerned with certain rights of the individuals. The Bill of Rights sought to protect certain basic rights for the common people.
The Declaration of the Rights of Man (1789) was another landmark event in the history of the rights of man. It was designed to provide some basic rights to man. The Preamble to the French Constitution of 1946 incorporated the rights of man. The first ten amendments of the American Constitution enshrined the rights of man.
Subsequently many constitutions incorporated the rights of man. The inclusion of certain basic rights into the constitutions has earned increasing popularity due to the reasons that people are claiming such rights and the U. N. Charter has strongly emphassied that men irrespective of sex, religion and language must enjoy basic human rights.
The words fundamental rights are quite well known and after the Second World War these two words have received wide publicity. Many countries have incorporated the rights of man of the French Constitution or the rights of the Bill of Rights of 1689 or the rights contained in the Universal Declaration of Human Rights.
Almost all the constitutions (which have adopted rights as part of the constitution) call fundamental rights. The same rights are called fundamental in the sense that these rights are inviolable or cannot be violated simply to satisfy the needs or whims of a section of government or population.
The idea of fundamental, inviolable rights is rooted in the Magna Carta. Bill of Rights passed by the British Parliament and the declaration of Rights of Man. From the progress of society and course of history it became crystal clear that certain rights are indeed fundamental or indispensable for the development of personality and inherent qualities of man.
The purpose of incorporating these rights into the constitution is that rights need to be protected by the state and if these rights are not made parts of the constitution their proper protection will not be ensured. There is a subtle difference between rights in general sense and the fundamental rights.
All sorts of rights are not included into the fundamental rights. Fundamental rights are also called basic rights. Citizens also came to know what are their rights. The term fundamental is not rigid at all. A right is fundamental in one state and the same right is not fundamental in another state. For example, right to work is a fundamental right in a socialist state but not in a capitalist state.
Definition of Human Rights:
Besides fundamental rights, natural rights and bill of rights there is another right which is called human rights. Human rights are not, so to speak, basically different from general category of rights. While analysing the nature of rights we had the opportunity to throw light on the idea that rights can practically come to be meaningless if they are not recognised and state authority does not take any step for their protection.
Naturally the intervention of state appears to be inevitable for the realisation of rights, but this need not be the case. Any human being as a part of humanity is entitled to have certain rights and the state must take necessary steps for their protection. From this idea emanates the concept of human rights.
We here quote Heywood’s definition of human rights: “Human rights are rights to which people are entitled by virtue of being human. They are, therefore, universal rights in the sense that they belong to all human beings rather than to members of any particular nation, race, religion, gender, social class or whatever”.
In a slightly different way Oxford Concise Dictionary of Politics has defined it: Human rights are a special sort of moral entitlement. They attach to all men equally simply by virtue of their humanity irrespective of race, nationality or membership of particular social group. They specify the minimum conditions for human dignity and a tolerable life.
Nature of Human Rights:
1. Human rights are called moral entitlements. As a part of the whole humanity every human being is entitled to certain rights and no authority under the sun can deprive him of these basic rights. Naturally, any attempt to deprive man of his share to rights is immoral. The entitlement concept of rights was first stressed by the great architects of American constitution and they were inspired by Locke.
2. The human rights originated from the concept of natural rights. From the social contract theory we come to know that in the state of nature people enjoyed some rights which were neither recognised nor protected by the state since there was no such institution in the state of nature. Nevertheless, there were rights which people enjoyed. But the scope of enjoyment of rights was extremely limited because of the non-availability of an efficient and wide infrastructure.
The natural rights, however, made no distinction of race, religion etc. Human rights are the latest offshoots of the old natural rights. Like natural rights human rights also do not make any discrimination in regard to race, sex, religion, language etc.
3. Human rights have also a slight relationship with the idea of religion or God. Thomas Jefferson (1743-1826), US political philosopher and statesman, believed that rights were originated from God or religion. Subsequently when the belief in God became very feeble and sometimes became non-existent the concept of right assumed different dimensions.
Ultimately rights were made universalised and attempts were made to keep rights outside the power of the state to recognise rights. But the state must have power to protect rights. The latest development of rights is really remarkable. It does not give any emphasis on the recognition aspect which is performed by the state. But the state must have to take action for protection.
4. Some want to delineate the human rights as fundamental. Heywood writes: “Human rights are also fundamental in that they are inalienable, they cannot be traded away or revoked”. This is a very important feature of human rights. This has been stated in many places such as American Declaration of Independence (1776). The revolutionaries of France also declared that any individual had the right to enjoy those rights which were essential for the development of personality and good qualities.
5. The absoluteness of human rights has also been amply stressed by many. These rights are such in nature that they have obliterated the differences of geographical boundaries, language, race and religion. All men of all countries have been created by the same creator and for that very reason there shall not be any distinction among men on the ground of race, religion etc. No state can deprive an individual of the human rights. Time and place are not important in so far as human rights are concerned.
The concept of human rights, some well-known scholars assert, owes a lot for its origin to the Christianity because Christianity propagated that God is the creator of all human beings and so all of them must enjoy rights. It was not the intention of God to make distinction. Man cannot do it.
6. A very important feature of human rights is these rights challenge the state sovereignty and power to recognise or not to recognise rights of individuals. The state may have power not to recognise rights but this power is inapplicable to human rights. On the contrary, the state will have to take all steps for the realisation of the rights and enhancement of their periphery. Periphery is in the sense that large number of people is to be brought under the rights.
Categories of Human Rights:
Though the two words human rights are comparatively of recent origin the rights included under this head are not of recent origin. Even the rights contemplated by Locke or Jefferson have found place in human rights.
For example, Locke’s right to life, liberty and property or Jefferson’s life, liberty and pursuit of happiness are treated as parts of human rights. So originally civil rights such as life, liberty and freedom from torture were human rights.
In the next phase some political and economic rights were included into the human rights which the earlier thinkers, could not think. This change was chiefly due to the change in the outlook and change the material condition of society. Progress of democracy and growing inequalities among different classes led many to think of the assertion of political and economic rights.
This was especially evident in seventeenth and eighteenth centuries in Western Europe. The growth of capitalism made a section of men rich and other poor. The latter, for obvious reason, demanded greater share of wealth and income.
Next we find that economic, political, social and other rights were not considered sufficient in the growing complexities of society. People began to claim rights relating to peace, development and humanitarianism. The sufficiency of wealth or its adequate distribution was not thought enough, more was required.
Several questions have been raised against human rights. In the first place, it is asked who is a human being? At what age this status is achieved? There is no satisfactory reply. All persons of all age cannot claim to be human being. A child of three years cannot be regarded as a human being and, if so, he is not entitled to rights. From no corner the answer to this question has yet been received. If human being begins at embryo then it can be said that abortion or killing of embryo is an offence because many religions treat life as sacred.
Secondly, if life constitutes the basis of rights, then the animals must have the right to life and killing of animals by men should be prohibited. There is no solution to this problem. Men are killing animals indiscriminately.
There is a third problem. The human rights are universal but not the human beings. Women in some sense enjoy rights which are different from men’s. But we do not say women’s rights. Women have maternity leave and it is their right, men have not.
Fourthly, it is not possible to bring both men and women under one umbrella because women have special problems and capacities, not only they have special role in families. So all men and women cannot be brought under the category of human rights. For all these reasons human rights concept is self-defeating. Society cannot treat all equally and discrimination is bound to arise.
Notwithstanding these problems the demand for and importance of human rights have not declined. Rather both are rising. Human rights activists throughout the world have focused their eagle’s eye on the realisation of human rights. Several international organisations have been found to be active.
Rights and Multiculturalism:
In the second half of the twentieth century rights have been found to be entangled with completely new developments and the most important of them is multiculturalism. In the sixties of the last century the black people of the USA launched a movement in support of their various rights particularly to assert their distinctiveness from the white population. They agitated to establish their identity in respect of culture.
They demanded that the black people are different from white people and their identity and distinction shall be recognised. This, the black people said, was their right which must be recognised by the U.S. government and the government must allow them to cultivate this separate culture or civilisation.
“Multiculturalism reflects most broadly, a positive endorsement of communal diversity, usually arising from racial, ethnic and language differences. As such, multiculturalism is a more distinctive political stance than a coherent and programmic doctrine”.
Multiculturalism demanded that each separate group of men shall be allowed to practise its ethnic, religious, cultural, language identities and, when allowed to do so, it will enrich the group. It is the right of the group and none has any right to deny it. This finally leads to the idea of minority rights or multicultural rights.
These rights include right to representation, right to religious practise, right to work according to culture. The concept of multiculturalism gained popularity in the 1960s and 1970s not only in the USA but even in many states of the Third World. It was the consequence not only of the intensification of democratic feeling but also of the interference of outside forces whose objective was to fuel and instigate divisive tendency.
The supporters of multiculturalism demand that ethnic, religious or cultural group has its own rights. When the group gets the proper opportunities to development that will ensure the progress of the group. It is because of the fact that the interplay among the various cultural groups brings about vibrancy and richness. Suppression, on the other hand, invites animosity and bitterness.
In several parts of the world men of various ethnic and religious groups have been agitating for the recognition of their cultural, ethnic and religious rights. They demand it as their democratic right. We admit that every group has the right to lead life according to its separate identity.
But the problem is in a multicultural state this becomes the source of separatism and parochialism. Large number of states, today, is under the grip of multicultural agitation and thus very often assumes the militancy and creates numerous problems for the civil government. Every ethnic, cultural or religious group, it is admitted, has the right to self-determination.
But from history we have received this lesson that balkanisation of a state (or nation-state) has never been able to solve the basic problems, rather it has aggravated the relations among different groups. We finally hold the view that an individual or a group can claim to have a right but it is up to the civil authority to recognise it or not.
Multicultural rights are not generally encouraged because of its tendency to divide a political unit. But unfortunately the different multicultural groups are, in different parts of the globe, agitating for more rights which are not always justified.