We have taken the claims to be axiomatic in existence. They are not rights by themselves. Only when the claims are recognized by the law making authorities only then they become rights and are lawful. The claims not legally recognized become unlawful and illegal. However, any legal system need not be just if any justified outstanding claims exists for which no legal recourse exists. What is legal may not be just. The rights in Hindu society were made the Brahman lawmakers and implemented by the kings and the caste councils (the Panchayats.) The claims by themselves do not do anything. On their own they are rather ineffective. Only when they are recognized or unrecognized, they become effective or ineffective. The recognized claims have their own effects and the unrecognized claims have their own effects. The recognized justified, claims have beneficial effects and the recognized unjustified claims have their harmful effects on the welfare of people, in general. Any assertions of rights or justified claims often lead to tense situations. A claim need not be recognized or asserted because in our model the instant claims and instant counter claims are automatically created. In our model, any claims need not be explicitly stated; it is natural to have claims and counter claims. Any individual can have a claim in society. A child has claim on the society though it may not be in position to assert it. Likewise all other individuals who are unable to assert their claims because of certain conditions or reasons beyond their control have their claims stated or unstated. Any individual can have a just claim even when he has legally unrecognized claims or unrecognized rights. We take these rights to be generally neutral. The claims may be recognized or unrecognized. The legally recognized claims are rights. There may be justified claims, which may not be legally recognized.
We may say that
Unrecognized justified claims = taken away rights
Now there is a need to define what are the just rights and the just duties. Unless we define what is just, it is not possible to go further without making the assumptions that there are just rights, which may, however vary from person to person and from society to society. This creates a lot of confusion and contradictions. This needs to be avoided. Here we define the just claims where claim and counter claim are equal and nullify each other. The just claims are also those where right of any entity A against another entity B’s are equal to its duty to B. If claim and counter claim are not equal then it implies that somebody is gaining at the cost of other. Similarly, if mutual rights do not equal mutual duties between two parties then again somebody is gaining at the expense of other.
In our simple two individuals model we will consider the basic rights and duties. There are two individuals A and B and both have the rights and duties. The right of A over B are represented by Rab and of B over A by Rba .The duties are denoted by Dab and Dba. The rights and duties should sum up to zero.
Rab+Dba = 0
If this sum is greater then zero then A is exploiting B and if it is less than zero the A is being exploited by B.
Similarly in case of B we have
Rba+Dba=0
By deducting we get
Rab - Rba=Dba - Dab.
This implies that the rights are equal if the duties are equal. Alternatively, if the difference persists in rights then the similar difference should persist in duties also. If the duty of A is more than his right should be more. If the condition does not hold then there is exploitation persisting in the system. The person having more rights is exploiting and if duties are more then he is being exploited. There is injustice in the system though both of them mutually agree to it. In that case, they agree to an exploiting contract or an exploiting agreement.
We can say that if Ra are rights of and Da are duties of A then
Ra + Da > 0 = privileges
And
Ra + Da < 0 = taken away rights = disabilities
Duties are owed so they carry negative signs. For our definition of justice Ra + Da = 0
Let us consider a family of children and parents. The existence of a child in a society creates a claim which is directed from children to grownups and a responsibility from grownups to youngsters. In a family the existence of a child creates a claim from child to grownups and an equal responsibility from grownups to child. The same holds for all the children in the family. The rights and duties become time oriented, and they cut across the time.
Let us define a right of A on B as Rab and duty of B to A as Dba . The duty of B to A cannot be greater or less than to rights of B against A. Therefore Rba = -Dba because duty is a negative quantity which is owed. Thus, Rba+ Dba = 0. Thus, the child has also a duty toward parents which cannot be greater than or less then the rights against him of his parents. Therefore, -Dba= Dab which means that Dab + Rab = 0. Right now we will stop here and would not go into further complications which can carry us into the dynamic time analysis.
In case of tribal society where the individual is not separately recognized we again have Cab+ Cba = 0 where A and B are tribes with equal strengths. This kind of a grouped society makes it possible to punish an individual who has not committed a crime. The honor killings or revenge killings or revenge violence acts may take place, which are condoned by the society – the cultural values weigh heavily in favor of such events. If any person or boy has brought dishonor to the tribe and tribe can only remove the dishonor by punishing the person. Sometimes the individual in question may have to pay for the crimes of his group (family/tribe) which are in fact committed by other member/s of the group because the crimes are distributed all over the group and hence everybody in the group is guilty and punishable. The unindividualized sense of equality may produce justice which may be called the tribal justice or the medieval justice. In case of traditional Hindu society, it is called the caste justice. The collective identity leads to collective honor and collective dishonor leading to violent incidences. This may result in revenge against unnamed individuals unrelated to crimes.
We also have -Dab = Rab which means that duties of A toward B cannot more than his rights against B.
Here we will introduce a concept of inequality which we will determine in terms of status and rights. The inequality between status of A and B is taken to be equal to inequality between their rights. The more the right the more is status and more is duty less is status. In our simplified model it means Sa = (Right or duty). Sa = Ra-net+Da-net. (duty is negative quantity because it is owed). Sa is positive if his right + duty is positive and negative if his right + duty are negative. But it is still relative.
Sa is status of A and Sb is status of B and Ra is right of A and against B and Rb is right of B against A then
Sa - Sb = Ra + Da - Rb - Db
Iq = Inequality = | Sa – Sb|
Now in case of equal rights we have the inequality equal to zero and Ra + Da - Rb - Db = 0 thus Sa – Sb = 0 , so Sa = Sb which means that in our model where A and B are treated equally then the relative status must be equal. Otherwise, if status are equal then they must enjoy equal rights and equal duties.
However, in real life the situation is not so. The inequality exists because A and B try to maximize their status. A change in Sa –Sb causes a change in their rights or recognized claims. Here we will define duty in terms of rights. If claim is positive then it is a right and if claim is negative then it is a duty. Absence of both the claim and the duty means a zero recognized claim and a nil accompanied status. For example, the rights of A in a country which is not his own are usually much less than the rights of the citizens of that country.
If Rab + Rba > 0 then A enjoys more right then B and is superior to B provided the duties are equal. However if Rab + Rba < 0 then B is enjoying some rights and some status but if Rab + Rba > 0 then B is having less rights toward A and a negative status.
If Rab + Rba < 0 then B enjoys more right then A and is superior to B. However if Rab + Rba > Rba then A is enjoying some rights and some status but if Rab + Rba < Rba then A is having duty toward B and a negative status.
Let us consider the status of individual A against the society A′.
SA= Raa′ + Daa′
And for individual B we have.
SB= Rba′+ Dba′
The relative status of A to be is given by
SA – SB = Raa′ + Daa′ - Rba′ – Dba′ .
Let us consider social status in this context. The difference in social status is equal to difference in social rights.
Let us consider economic status in this context. The difference in economic status is equal to difference in economic rights.
Let us consider political status in this context. The difference in political status is equal to difference in political rights.
Let us consider legal status in this context. The difference in legal status is equivalent to difference is equal to difference in legal rights.
This means a loss in status is accompanied by a loss in rights or a loss in rights is accompanied by a loss in status.
A loss in social status leads to loss in social rights which may affect the social transactions of A. A may now have to face the reduced number of beneficial transactions or not at all. Some people may find no point in talking to him. In this context, the examples of traitors and thieves may be useful. The loss of their status is clearly reflected in the lowered level of the social transaction.
A loss in economic status leads to loss in economic rights which may affect the economic transactions of A. A may now have to face reduced number of beneficial transactions or not at all. Some people may find no point in doing business with him. The examples of job losers and bankrupt people may be cited as example. This may also affect A’s social rights and a reduction in relative social status.
A loss in political status leads to loss in political rights which may affect the political transactions of A. A may now have to face reduced number of beneficial transactions or not at all. Some people may find no point in supporting him. His political base may shrink.
A loss in legal status leads to loss in legal rights which may affect the legal transactions of A. A may now have to face reduced number of beneficial transactions or not at all. A may not enjoy the protection of law and hence may have to suffer. He may not find justice in this case.
Further, considering the types of rights, we find that the recognized rights may be further divided into justified and unjustified rights. The justified claims make justified rights and unjustified claims make unjustified rights. Similarly, the unrecognized claims may again be further divided into justified and unjustified unrecognized claims. Actually unjustified recognized rights and justified unrecognized claims are sometimes counterparts of each other. The rights of a Lord have their counterpart in the bondage of the serf. The privileges of Lord are reflected in the sufferings of serfs. Then we have the rights which can be called the abandoned rights and the duties which may be called the abandoned duties. These rights are more related to abdication of duties and may result in injustice in society. Anyway, the unjustified rights create injustice in society. Sometimes they may have no effects.
However, the process of status maximization leads to situations where the nullification of imbalances is just not possible. That means that the perfect justice in the society in our sense is near impossible. Here the role of the lawmakers and those who execute laws becomes very important. The lawmakers, if biased, may make the laws which favor a certain section of the society. Those who implement the laws may implement them in such a way that the zeroed conditions in the society are not achieved. The powerful may prevail over the weak. This power may be physical as in feudal or kingdom states or traditional. The feudal power which existed in Europe before the French revolution grossly favored the nobles ignoring the commoners. Here the role of status becomes very crucial. The people with high status enjoyed the privileges whereas unrecognized justified claims of commoners were a source of sufferings of commoners. An impartial authority is needed in the society so that just conditions are achieved. In the absence of such an authority the unjust conditions may prevail in society. In this situation, the underprivileged may just depend on the mercy of the privileged people. An impartial authority is the one which treats everybody equally; the result is equality before the law and try to attain the situation where the claims and the resultant counter claims are equal or nearly equal. The law should see that the justified claims are honored. The laws are means by which the justified claims are recognized or unrecognized as rights by the authorities that be.
The unjustified recognized rights and justified unrecognized rights (claims) may be classified as snatched rights, stolen rights, swindled and cheated rights. More categories may be surrendered or suspended rights. The rights of people, which have been taken away from them by force, may be classified as the snatched rights. The rights of people which have been taken away from them without their knowledge may be classified as stolen rights. The rights, which have been taken away from them on false promises, are cheated rights. The rights surrendered by people are surrendered rights. The rights, which have been suspended by the authorities, are suspended rights. Further, we may have implemented and non-implemented rights. Then we may have abandoned rights and abandoned duties. The latter is more likely to be the case in general.
We know that the rights must equal the duties or it is injustice or exploitation.
The unrecognized justified rights (claims) are usually reflected in the sufferings of people. If manmade sufferings are there then one should look for the unrecognized justified rights/claims and recognized unjustified rights.
Let us consider a case of an individual A who is a part of a collective entity B. The rights conferred by B on A should be more or less equal to duties assigned to A. let us take an extreme case where the rights of A are nil. Then we have either exploitation or injustice. In that case, A really owes no duty to B. If A willingly performs some duty then it is free will slavery.
When we talk about the society, we also have to talk about the distribution of rights in the society among the different individuals and/or groups. This distribution is affected by the existence of status conditions of different individuals or groups. Here by group we mean a group made of homogeneous population.
The legal positivists endorse the theory of legal positivism about rights, which recognizes that only rights are those, which originate from the established law. The legal positivism actually allows for snatching of rights depending upon who is in power. Traditionally established laws are based on the coercive power of society and/or state. However, this theory is relevant to interpretation of established law. The legal positivism actually outlaws the French revolution and the American war of independence. Exactly, the French Revolution and the American War had to legalize themselves.
The theory of legal positivism is highly inappropriate for the lawmakers. The lawmakers should be concerned with what should be the law and not what the law is. The lawmakers should be impartial and equality of claims should be of paramount importance.
The claims are inherent in the nature of human beings and in their interaction with each other. The legal rights are not necessarily recognized justified rights. The rights, which are availed at the cost of other society members’ rights, can be called unjustified rights. The rights which are not equally available are also unjustified rights.
In any war, the winning side can easily snatch the other sides’ right to live. It can also derecognize the right or claims of the losing side. The existence of the unrecognized justified rights, most of the time, is in the human sufferings; and may sometime lead to far reaching social, political and economic changes.
We may say that
Unrecognized justified claims = taken away rights
Now there is a need to define what are the just rights and the just duties. Unless we define what is just, it is not possible to go further without making the assumptions that there are just rights, which may, however vary from person to person and from society to society. This creates a lot of confusion and contradictions. This needs to be avoided. Here we define the just claims where claim and counter claim are equal and nullify each other. The just claims are also those where right of any entity A against another entity B’s are equal to its duty to B. If claim and counter claim are not equal then it implies that somebody is gaining at the cost of other. Similarly, if mutual rights do not equal mutual duties between two parties then again somebody is gaining at the expense of other.
In our simple two individuals model we will consider the basic rights and duties. There are two individuals A and B and both have the rights and duties. The right of A over B are represented by Rab and of B over A by Rba .The duties are denoted by Dab and Dba. The rights and duties should sum up to zero.
Rab+Dba = 0
If this sum is greater then zero then A is exploiting B and if it is less than zero the A is being exploited by B.
Similarly in case of B we have
Rba+Dba=0
By deducting we get
Rab - Rba=Dba - Dab.
This implies that the rights are equal if the duties are equal. Alternatively, if the difference persists in rights then the similar difference should persist in duties also. If the duty of A is more than his right should be more. If the condition does not hold then there is exploitation persisting in the system. The person having more rights is exploiting and if duties are more then he is being exploited. There is injustice in the system though both of them mutually agree to it. In that case, they agree to an exploiting contract or an exploiting agreement.
We can say that if Ra are rights of and Da are duties of A then
Ra + Da > 0 = privileges
And
Ra + Da < 0 = taken away rights = disabilities
Duties are owed so they carry negative signs. For our definition of justice Ra + Da = 0
Let us consider a family of children and parents. The existence of a child in a society creates a claim which is directed from children to grownups and a responsibility from grownups to youngsters. In a family the existence of a child creates a claim from child to grownups and an equal responsibility from grownups to child. The same holds for all the children in the family. The rights and duties become time oriented, and they cut across the time.
Let us define a right of A on B as Rab and duty of B to A as Dba . The duty of B to A cannot be greater or less than to rights of B against A. Therefore Rba = -Dba because duty is a negative quantity which is owed. Thus, Rba+ Dba = 0. Thus, the child has also a duty toward parents which cannot be greater than or less then the rights against him of his parents. Therefore, -Dba= Dab which means that Dab + Rab = 0. Right now we will stop here and would not go into further complications which can carry us into the dynamic time analysis.
In case of tribal society where the individual is not separately recognized we again have Cab+ Cba = 0 where A and B are tribes with equal strengths. This kind of a grouped society makes it possible to punish an individual who has not committed a crime. The honor killings or revenge killings or revenge violence acts may take place, which are condoned by the society – the cultural values weigh heavily in favor of such events. If any person or boy has brought dishonor to the tribe and tribe can only remove the dishonor by punishing the person. Sometimes the individual in question may have to pay for the crimes of his group (family/tribe) which are in fact committed by other member/s of the group because the crimes are distributed all over the group and hence everybody in the group is guilty and punishable. The unindividualized sense of equality may produce justice which may be called the tribal justice or the medieval justice. In case of traditional Hindu society, it is called the caste justice. The collective identity leads to collective honor and collective dishonor leading to violent incidences. This may result in revenge against unnamed individuals unrelated to crimes.
We also have -Dab = Rab which means that duties of A toward B cannot more than his rights against B.
Here we will introduce a concept of inequality which we will determine in terms of status and rights. The inequality between status of A and B is taken to be equal to inequality between their rights. The more the right the more is status and more is duty less is status. In our simplified model it means Sa = (Right or duty). Sa = Ra-net+Da-net. (duty is negative quantity because it is owed). Sa is positive if his right + duty is positive and negative if his right + duty are negative. But it is still relative.
Sa is status of A and Sb is status of B and Ra is right of A and against B and Rb is right of B against A then
Sa - Sb = Ra + Da - Rb - Db
Iq = Inequality = | Sa – Sb|
Now in case of equal rights we have the inequality equal to zero and Ra + Da - Rb - Db = 0 thus Sa – Sb = 0 , so Sa = Sb which means that in our model where A and B are treated equally then the relative status must be equal. Otherwise, if status are equal then they must enjoy equal rights and equal duties.
However, in real life the situation is not so. The inequality exists because A and B try to maximize their status. A change in Sa –Sb causes a change in their rights or recognized claims. Here we will define duty in terms of rights. If claim is positive then it is a right and if claim is negative then it is a duty. Absence of both the claim and the duty means a zero recognized claim and a nil accompanied status. For example, the rights of A in a country which is not his own are usually much less than the rights of the citizens of that country.
If Rab + Rba > 0 then A enjoys more right then B and is superior to B provided the duties are equal. However if Rab + Rba < 0 then B is enjoying some rights and some status but if Rab + Rba > 0 then B is having less rights toward A and a negative status.
If Rab + Rba < 0 then B enjoys more right then A and is superior to B. However if Rab + Rba > Rba then A is enjoying some rights and some status but if Rab + Rba < Rba then A is having duty toward B and a negative status.
Let us consider the status of individual A against the society A′.
SA= Raa′ + Daa′
And for individual B we have.
SB= Rba′+ Dba′
The relative status of A to be is given by
SA – SB = Raa′ + Daa′ - Rba′ – Dba′ .
Let us consider social status in this context. The difference in social status is equal to difference in social rights.
Let us consider economic status in this context. The difference in economic status is equal to difference in economic rights.
Let us consider political status in this context. The difference in political status is equal to difference in political rights.
Let us consider legal status in this context. The difference in legal status is equivalent to difference is equal to difference in legal rights.
This means a loss in status is accompanied by a loss in rights or a loss in rights is accompanied by a loss in status.
A loss in social status leads to loss in social rights which may affect the social transactions of A. A may now have to face the reduced number of beneficial transactions or not at all. Some people may find no point in talking to him. In this context, the examples of traitors and thieves may be useful. The loss of their status is clearly reflected in the lowered level of the social transaction.
A loss in economic status leads to loss in economic rights which may affect the economic transactions of A. A may now have to face reduced number of beneficial transactions or not at all. Some people may find no point in doing business with him. The examples of job losers and bankrupt people may be cited as example. This may also affect A’s social rights and a reduction in relative social status.
A loss in political status leads to loss in political rights which may affect the political transactions of A. A may now have to face reduced number of beneficial transactions or not at all. Some people may find no point in supporting him. His political base may shrink.
A loss in legal status leads to loss in legal rights which may affect the legal transactions of A. A may now have to face reduced number of beneficial transactions or not at all. A may not enjoy the protection of law and hence may have to suffer. He may not find justice in this case.
Further, considering the types of rights, we find that the recognized rights may be further divided into justified and unjustified rights. The justified claims make justified rights and unjustified claims make unjustified rights. Similarly, the unrecognized claims may again be further divided into justified and unjustified unrecognized claims. Actually unjustified recognized rights and justified unrecognized claims are sometimes counterparts of each other. The rights of a Lord have their counterpart in the bondage of the serf. The privileges of Lord are reflected in the sufferings of serfs. Then we have the rights which can be called the abandoned rights and the duties which may be called the abandoned duties. These rights are more related to abdication of duties and may result in injustice in society. Anyway, the unjustified rights create injustice in society. Sometimes they may have no effects.
However, the process of status maximization leads to situations where the nullification of imbalances is just not possible. That means that the perfect justice in the society in our sense is near impossible. Here the role of the lawmakers and those who execute laws becomes very important. The lawmakers, if biased, may make the laws which favor a certain section of the society. Those who implement the laws may implement them in such a way that the zeroed conditions in the society are not achieved. The powerful may prevail over the weak. This power may be physical as in feudal or kingdom states or traditional. The feudal power which existed in Europe before the French revolution grossly favored the nobles ignoring the commoners. Here the role of status becomes very crucial. The people with high status enjoyed the privileges whereas unrecognized justified claims of commoners were a source of sufferings of commoners. An impartial authority is needed in the society so that just conditions are achieved. In the absence of such an authority the unjust conditions may prevail in society. In this situation, the underprivileged may just depend on the mercy of the privileged people. An impartial authority is the one which treats everybody equally; the result is equality before the law and try to attain the situation where the claims and the resultant counter claims are equal or nearly equal. The law should see that the justified claims are honored. The laws are means by which the justified claims are recognized or unrecognized as rights by the authorities that be.
The unjustified recognized rights and justified unrecognized rights (claims) may be classified as snatched rights, stolen rights, swindled and cheated rights. More categories may be surrendered or suspended rights. The rights of people, which have been taken away from them by force, may be classified as the snatched rights. The rights of people which have been taken away from them without their knowledge may be classified as stolen rights. The rights, which have been taken away from them on false promises, are cheated rights. The rights surrendered by people are surrendered rights. The rights, which have been suspended by the authorities, are suspended rights. Further, we may have implemented and non-implemented rights. Then we may have abandoned rights and abandoned duties. The latter is more likely to be the case in general.
We know that the rights must equal the duties or it is injustice or exploitation.
The unrecognized justified rights (claims) are usually reflected in the sufferings of people. If manmade sufferings are there then one should look for the unrecognized justified rights/claims and recognized unjustified rights.
Let us consider a case of an individual A who is a part of a collective entity B. The rights conferred by B on A should be more or less equal to duties assigned to A. let us take an extreme case where the rights of A are nil. Then we have either exploitation or injustice. In that case, A really owes no duty to B. If A willingly performs some duty then it is free will slavery.
When we talk about the society, we also have to talk about the distribution of rights in the society among the different individuals and/or groups. This distribution is affected by the existence of status conditions of different individuals or groups. Here by group we mean a group made of homogeneous population.
The legal positivists endorse the theory of legal positivism about rights, which recognizes that only rights are those, which originate from the established law. The legal positivism actually allows for snatching of rights depending upon who is in power. Traditionally established laws are based on the coercive power of society and/or state. However, this theory is relevant to interpretation of established law. The legal positivism actually outlaws the French revolution and the American war of independence. Exactly, the French Revolution and the American War had to legalize themselves.
The theory of legal positivism is highly inappropriate for the lawmakers. The lawmakers should be concerned with what should be the law and not what the law is. The lawmakers should be impartial and equality of claims should be of paramount importance.
The claims are inherent in the nature of human beings and in their interaction with each other. The legal rights are not necessarily recognized justified rights. The rights, which are availed at the cost of other society members’ rights, can be called unjustified rights. The rights which are not equally available are also unjustified rights.
In any war, the winning side can easily snatch the other sides’ right to live. It can also derecognize the right or claims of the losing side. The existence of the unrecognized justified rights, most of the time, is in the human sufferings; and may sometime lead to far reaching social, political and economic changes.
No comments:
Post a Comment