The concept of rights is not very old if it is thought in terms of the modern language of rights. However, the earlier times also had a notion of rights, which was implicit in the privileges granted to some specific people for performing some exclusive beneficial functions. These functions benefitted only them. The notion of duty was important but the notion of rights was implicit. The powerful and influential people in the society reaped the fruits of duties assigned to others. The duties essentially mean benefits to somebody else. This somebody else might have been some other persons or the society itself. This society was controlled by the traditional rules which got translated into the equivalent of group-based rights and duties which benefitted only the ruling elites. This position lasted for a long time until the European Renaissance took place in the beginning of modern period. In modern times, the concept of an individual materialized and the associated concepts followed. The individual rights came to the forefront. The duties were now clearly separated from the rights. The notion of rights was used to limit the control of king and nobility on the emerging middle class. The middle class emerged under the forces of industrial revolution. Then the French revolution followed which had a tremendous impact on the world.
With the French Revolution and American Declaration of Independence, the importance of individual rights gained momentum. Earlier the rulers in Europe used the “divine right” theory to rule over the lower strata of the society. The divinity was also invoked in the Hindu society. The invokers denied the people right to anything under the hypothesis of divinely ordained fourfold order. The nobility was supposed to rule over others because they were created by divinity to rule over others. The nobility superordinated over everybody else with a tacit agreement with the religious authority. The French Revolution with its principles of Equality, Liberty and Fraternity was successful in overthrowing the nobility and sidelining the religion. The nobility and religion were excluded from the political power. The power came in the hands of common people who spoke the language of natural rights instead of the divine rights or ritual rights.
The theory of natural rights was developed by many philosophers, of which prominent were, Hobbes, Locke and Rousseau among others. The natural right theory envisaged some basic natural rights which no authority could take away from an individual. These rights related to equality, freedom, property, survival and other issues. These rights found their way in the American Declaration of Independence and the French Declaration of Rights of man. The natural rights were the rights which no authority or state could take away from an individual. The right to life, equality, freedom and property were almost considered sacred. No king, nobility or any authority could take away these rights because these rights were provided by the nature or some metaphysical powers. However, a sovereign was required to look after the law and order and to safeguard these natural rights. This sovereign in the form of King or democratic Parliament could not affect the natural rights of people. These rights could not be violated by anybody.
However, Jeremy Bentham attacked the natural rights concept and called the natural rights as nonsense on stilts. According to him, the real right is the child of established law. In the absence of any such established law, no rights exist. All the real rights have to be recognized by the law. He said that from imaginary laws come the imaginary rights which have no existence. The rights which could not be exercised were no rights. There was no natural law which recognized the natural rights. He puts the law before the rights and this law has to be established only then it can produce or create the rights. We may agree with him in the case of rights but not in the case of claims. From the concepts of claims, we arrive at the kinds of rights and justice in subsequent chapters.
In this respect, the right to life, liberty, equality and property are merely gifts from the law making authority. If this law making authority is backed by the people then these rights can be regarded as gift of people to themselves. If the law making authority is backed by the force of aristocracy then these natural rights have to be merciful gift from the holders of such force. In the latter case the right to equality, freedom and property do not normally exist for everybody. The people have a right to gift themselves the so called natural rights. It is an expensive gift for which people in history have sacrificed their lives in a mind-boggling manner. The lives were given up as if they came dime a dozen. Of course, the oppressed lives come dime a dozen.
Generally, there are two theories of the rights of which one is the Will theory or the Choice theory and the other is the Interest theory. Each theory claims that it defines the rights in a batter way. The scholars have been justifying the theory they support without reaching at any universal conclusion.
The Will theory assumes that all the individuals are rational human beings and capable of making a rational choice out of many different options available to them. Since everybody is rational, there is no need to impose the choice of one over the other. The individual is autonomous sovereign and all others owe a duty to safeguard his rights. Others have a duty to grant this autonomous individual the freedom and maintain his individuality. The basic right to be given to individual is the right of freedom. All others owe a duty to him. All others have a duty to protect this. He can determine what other can do or cannot do. The right of others also protected since they are also the individual autonomous sovereigns. They will also be benefitted by similar duty by this individual toward them. Therefore, all the individuals are sovereign and entitled to freedom and autonomy to exercise their will. According to Will theory, all rights confer the sovereignty. Once they have freedom, the rights to life, liberty, equality and property follow since it satisfies his needs and will. It is easy to make choices which protect one’s personal best interests. There is need for freedom, the freedom to do or the freedom of not to do, the freedom to allow or the freedom of not to allow. The choice theory of rights provides justification for rights with the help of rationality. Everybody is rational so nobody needs to impose his own rationality on others. Thus, autonomy follows. Any given individual can make choice through his rationality regarding survival, liberty and equality etc. Liberty includes freedom of speech etc. The Will theory excludes people who are not capable of making rational choice like babies and comatose patients. One needs to be capable of making rational choice to enjoy the rights. In this process, it is easy to discard people who are not supposed to possess the supposed rationality.
The interest theory on the other hand maintains that the rights are meant to further the interest of individuals. The interest theory focuses on general best interest. The possession of these rights improves the welfare of a man. The rights are always good for a man. In contrast to the Will theory, in Interest theory, it is not necessary for the right holder to have rational choices. A person has a right if others have a duty which protects his interests. The obligations provided with respect to a right are obligations owed to a right holder, which protect his right. The babies and comatose person can also have rights since these protect their interests. However, it is possible for a man to have interest in x without having a right in it or contrariwise he can have x without having an interest in it. There may be some rights in which the holder may not be interested. The Interest theory does not account for that. People can be threatened into not taking actions according to their rights by others whose interest may be adversely affected. The interests are no longer interests but harmful. The theory needs a lot of juxtapositions.
If the rights have their counterpart in duties then opposite is also true. The duty implies a right of a person to whom the duty is owed. Thus, all the duties in traditional societies of India and China can be converted into rights of those to whom the duties are owed. One cannot say that the rights do not exist in the Asian societies. The existence of duties means existence of the rights. All the elites there are the right holders. These one-sided duties are actually privileges. If it is duty to remain silent then somebody must have the right of expression to whom the duty is owed. If it is a duty to not to have political participation then somebody must have the right to political participation. If it is duty to remain silent then the rights to express and to express political views, do exist. The individual who posses these rights must also exist. If somebody has the duty to humbly submit himself/herself to the command of others then others have the right to command him/her. The collective rights are actually distributed over different groups in the society directly in proportion to status of each group. The lower down groups may only have duties and no rights.
Hohfeld (1879 – 1918) has defined the rights in liberty rights, claim rights, power rights and immunities. These rights have their counterpoints in no-claims, duty, liability and disability. If A has a claim then he lacks no-claims. If A has liberty then he has no-duty. If A has power then has no disability. If A has immunity then he has no liability. These are called the Hohfeldian incidents. His analysis was related to legal system but it has been extended to right theories.
The rights are further divided into negative and positive rights. A positive right is a right that another person can do something. A negative right is a right that another person cannot do something. Freedom of expression is a negative right. In fact, all liberties are negative rights. The correlative duties imply that others should refrain from interfering with one’s rights.
The rights are also divided into active and passive rights. The active right is a right to do something oneself. The passive right is the right that another person can do something or cannot do something.
There is a difference between failing to respect others’ rights, and failing to fulfill the obligations which are not a part of rights. The former is binding while the later is not. The obligations under rights are owed to a right holder while the obligations under duties are not. The duties are not binding but the obligations under rights are. However, a duty under a right is binding. One has a duty to not to infringe upon the rights of others and it is binding. A failure in this regarding is punishable by society. The violations of rights, embedded in the Constitution or in the structure of society, are punishable. One thing should be noted that for violation a right has to exist either explicitly or implicitly in the society. The violators of Constitutional rights are punished by the legal system and violation of implicit rights is punishable by the social methods. Both affect the life of a person.
With the French Revolution and American Declaration of Independence, the importance of individual rights gained momentum. Earlier the rulers in Europe used the “divine right” theory to rule over the lower strata of the society. The divinity was also invoked in the Hindu society. The invokers denied the people right to anything under the hypothesis of divinely ordained fourfold order. The nobility was supposed to rule over others because they were created by divinity to rule over others. The nobility superordinated over everybody else with a tacit agreement with the religious authority. The French Revolution with its principles of Equality, Liberty and Fraternity was successful in overthrowing the nobility and sidelining the religion. The nobility and religion were excluded from the political power. The power came in the hands of common people who spoke the language of natural rights instead of the divine rights or ritual rights.
The theory of natural rights was developed by many philosophers, of which prominent were, Hobbes, Locke and Rousseau among others. The natural right theory envisaged some basic natural rights which no authority could take away from an individual. These rights related to equality, freedom, property, survival and other issues. These rights found their way in the American Declaration of Independence and the French Declaration of Rights of man. The natural rights were the rights which no authority or state could take away from an individual. The right to life, equality, freedom and property were almost considered sacred. No king, nobility or any authority could take away these rights because these rights were provided by the nature or some metaphysical powers. However, a sovereign was required to look after the law and order and to safeguard these natural rights. This sovereign in the form of King or democratic Parliament could not affect the natural rights of people. These rights could not be violated by anybody.
However, Jeremy Bentham attacked the natural rights concept and called the natural rights as nonsense on stilts. According to him, the real right is the child of established law. In the absence of any such established law, no rights exist. All the real rights have to be recognized by the law. He said that from imaginary laws come the imaginary rights which have no existence. The rights which could not be exercised were no rights. There was no natural law which recognized the natural rights. He puts the law before the rights and this law has to be established only then it can produce or create the rights. We may agree with him in the case of rights but not in the case of claims. From the concepts of claims, we arrive at the kinds of rights and justice in subsequent chapters.
In this respect, the right to life, liberty, equality and property are merely gifts from the law making authority. If this law making authority is backed by the people then these rights can be regarded as gift of people to themselves. If the law making authority is backed by the force of aristocracy then these natural rights have to be merciful gift from the holders of such force. In the latter case the right to equality, freedom and property do not normally exist for everybody. The people have a right to gift themselves the so called natural rights. It is an expensive gift for which people in history have sacrificed their lives in a mind-boggling manner. The lives were given up as if they came dime a dozen. Of course, the oppressed lives come dime a dozen.
Generally, there are two theories of the rights of which one is the Will theory or the Choice theory and the other is the Interest theory. Each theory claims that it defines the rights in a batter way. The scholars have been justifying the theory they support without reaching at any universal conclusion.
The Will theory assumes that all the individuals are rational human beings and capable of making a rational choice out of many different options available to them. Since everybody is rational, there is no need to impose the choice of one over the other. The individual is autonomous sovereign and all others owe a duty to safeguard his rights. Others have a duty to grant this autonomous individual the freedom and maintain his individuality. The basic right to be given to individual is the right of freedom. All others owe a duty to him. All others have a duty to protect this. He can determine what other can do or cannot do. The right of others also protected since they are also the individual autonomous sovereigns. They will also be benefitted by similar duty by this individual toward them. Therefore, all the individuals are sovereign and entitled to freedom and autonomy to exercise their will. According to Will theory, all rights confer the sovereignty. Once they have freedom, the rights to life, liberty, equality and property follow since it satisfies his needs and will. It is easy to make choices which protect one’s personal best interests. There is need for freedom, the freedom to do or the freedom of not to do, the freedom to allow or the freedom of not to allow. The choice theory of rights provides justification for rights with the help of rationality. Everybody is rational so nobody needs to impose his own rationality on others. Thus, autonomy follows. Any given individual can make choice through his rationality regarding survival, liberty and equality etc. Liberty includes freedom of speech etc. The Will theory excludes people who are not capable of making rational choice like babies and comatose patients. One needs to be capable of making rational choice to enjoy the rights. In this process, it is easy to discard people who are not supposed to possess the supposed rationality.
The interest theory on the other hand maintains that the rights are meant to further the interest of individuals. The interest theory focuses on general best interest. The possession of these rights improves the welfare of a man. The rights are always good for a man. In contrast to the Will theory, in Interest theory, it is not necessary for the right holder to have rational choices. A person has a right if others have a duty which protects his interests. The obligations provided with respect to a right are obligations owed to a right holder, which protect his right. The babies and comatose person can also have rights since these protect their interests. However, it is possible for a man to have interest in x without having a right in it or contrariwise he can have x without having an interest in it. There may be some rights in which the holder may not be interested. The Interest theory does not account for that. People can be threatened into not taking actions according to their rights by others whose interest may be adversely affected. The interests are no longer interests but harmful. The theory needs a lot of juxtapositions.
If the rights have their counterpart in duties then opposite is also true. The duty implies a right of a person to whom the duty is owed. Thus, all the duties in traditional societies of India and China can be converted into rights of those to whom the duties are owed. One cannot say that the rights do not exist in the Asian societies. The existence of duties means existence of the rights. All the elites there are the right holders. These one-sided duties are actually privileges. If it is duty to remain silent then somebody must have the right of expression to whom the duty is owed. If it is a duty to not to have political participation then somebody must have the right to political participation. If it is duty to remain silent then the rights to express and to express political views, do exist. The individual who posses these rights must also exist. If somebody has the duty to humbly submit himself/herself to the command of others then others have the right to command him/her. The collective rights are actually distributed over different groups in the society directly in proportion to status of each group. The lower down groups may only have duties and no rights.
Hohfeld (1879 – 1918) has defined the rights in liberty rights, claim rights, power rights and immunities. These rights have their counterpoints in no-claims, duty, liability and disability. If A has a claim then he lacks no-claims. If A has liberty then he has no-duty. If A has power then has no disability. If A has immunity then he has no liability. These are called the Hohfeldian incidents. His analysis was related to legal system but it has been extended to right theories.
The rights are further divided into negative and positive rights. A positive right is a right that another person can do something. A negative right is a right that another person cannot do something. Freedom of expression is a negative right. In fact, all liberties are negative rights. The correlative duties imply that others should refrain from interfering with one’s rights.
The rights are also divided into active and passive rights. The active right is a right to do something oneself. The passive right is the right that another person can do something or cannot do something.
There is a difference between failing to respect others’ rights, and failing to fulfill the obligations which are not a part of rights. The former is binding while the later is not. The obligations under rights are owed to a right holder while the obligations under duties are not. The duties are not binding but the obligations under rights are. However, a duty under a right is binding. One has a duty to not to infringe upon the rights of others and it is binding. A failure in this regarding is punishable by society. The violations of rights, embedded in the Constitution or in the structure of society, are punishable. One thing should be noted that for violation a right has to exist either explicitly or implicitly in the society. The violators of Constitutional rights are punished by the legal system and violation of implicit rights is punishable by the social methods. Both affect the life of a person.
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