Lesson 7 Rights : Natural, Moral and Legal; Rights and Obligations Important Questions

 Lesson 7 Rights : Natural, Moral and Legal; Rights and Obligations

Rights are commonly known as social claims that help a person prove their best development, etc. and help them to develop their personal identities. The state never confers rights, it only recognizes them, governments never confer rights, it only gives them protection. Rights arise from society, from specific social conditions, and that is why rights are always social. Rights means the rights of individuals, they only belong to individuals, they exist only for individuals, they are treated by them so that they can fully develop their personal identities.

According to Ernest Barker, "Rights are the result of the social system of justice upon which the state and its laws are based." In fact, the right is the proof that the person's dignity is not accepted in the state, in which any rights of the individual Are not exist. Nevertheless, certain classes in a state could be denied rights. For example, in the ancient Greek city states, only freemen had civil rights, and there were no rights for slaves, women, and foreigners. Clearly, such a system of rights is not based on a sense of justice.

Historically, it is clear that the increasing interest in rights is not limited only to the 17th and 18th centuries but also to the human rights in the 19th century there is a revival of growing interest in the concept. Since 1960, the Civil Rights Movement adopted rights as a major pillar for the reconstruction of society. In recent contemporary debate issues related to women and disadvantaged minorities have come to the central stage. Even in our time, the question of the right to death by will of our own is hotly discussed. Similarly, in at present sexual minority - L.G.B.T. The issue of community rights has added a new dimension to the rights of minorities. Today on the central stage of the discussion of rights, there are discussions related to human rights. The discussion concerning rights has become so fascinating in the present society that the language of rights has become the most powerful language for moral change, not only in the present but also in the near future.

The Comprehensive Declaration of Human Rights of the United Nations in 1948 'propounded a new notion of human rights which was virtually a product of Western countries but which has gradually spread to the countries of Asia and Africa and contemporary political discussion it remains a controversial subject.

Nature of Rights

The relationship between the individuals and the states has been an important question of political theory, one that has baffled, if not confused, political philosophers since ages. Political philosophers have debated as to who, whether the state or the individual, is more important and who owes what to whom. Rights are the sum total of those opportunities which ensure enrichment of human personality.

According to Laski, ‘Rights, in fact, are those conditions of social life without which no man can seek, in general, to be his best’. According to Salmond, ‘a legal right ins an interest recognized and protected by the rule of law an interest to violation of which would be a legal wrong and respect for which is a legal duty.’ Bosanquet defines it as ‘a claim recognized by the society and enforced by the state.’(Homosexuality). According to Barker, the development of the capacities of the personality of the individual is the ultimate purpose of the state and the final political value. The law of the state is right and possesses the quality of rightness or justice by virtue of securing and guaranteeing to the greatest possible number of persons, the external conditions necessary for the greatest possible development of the capacities of the individual personality.

Firstly, rights in their nature are the result and embodiment of the general system of right on which the state and its laws are based. Rights are a portion of right. Hence one cannot have the rights apart from the notion of right. One cannot have secured and guaranteed rights in the legal sense of the term apart from the law which is based upon the notion of rights.

Secondly, regarding the sources of rights, the origin of rights is something in the individual himself. Rights flow from the inherent fact of individual's own moral personality and his social nature. In this sense, we can say that rights are natural or human. One cannot possess the rights unless they are secured and enforced by the state. In this sense rights have a source outside man, and the rights now flow from something more than one's personal nature.

Thirdly, the concept of rights is essentially about human relationship in the society. Hence enjoyment of rights involves respectful observation of certain fundamental cannons of social welfare. The rights are never absolute and unlimited and are governed by the society's interest. They impose co moral responsibilities on every individual. While enjoying rights, man must be aware of the similar rights of others. Rights are given equally to all individuals in the society.

Fourthly, with the socio-economic development, new demands of individuals continue to come into existence which struggle for social recognition. Such demands when recognized by the state through its laws become rights.

And lastly while the rights are claimed universally, a great majority of rights are limited in time and space because they have a reality only in the context of a particular human society. For example, the rights possessed by the Indian people after independence did not exist before and may not be the same in the 21st century. Also the content of a particular right-say right to property-may differ from country to country.

Negative and Positive Rights

The concept of rights is a dynamic concept. With the development of social consciousness, rights are subjected to continual review and redefinition. It is interesting to note that rights are always demanded and even granted as the ‘rights of man.’ But their beneficiaries are usually those classes which articulate this demand because they formulate the demands of rights in a manner best suited and calculated to serve their own interests.

This trend indicates a shift of focus from negative to positive rights. Negative rights suggest the sphere where the state is not allowed to enter. They suggest the sphere of freedom of individual which shall not be encroached by the state. Positive rights, on the other hand, prescribe the responsibility of the state in securing rights of individuals. They require the state to take positive measures for the protection of the weaker and vulnerable sections or those placed in a vulnerable position. In fact, the negative and positive rights should be treated as parts of a continuum, not as distinct entities.

Broadly speaking, negative rights indicate as to which acts of the individual shall not be restricted by the state. Thus, 'freedom of thought and expression ' implies that the state shall not impose any restriction on individual's thought and expression. So, it comes in the category of negative rights. But if we say that the state shall provide universal education to promote its citizen' faculty of thought and expression, it will be described as their positive right.

Justification of Rights

There are two major contemporary philosophical approaches to explain why the rights should be respected. These two approaches are broadly known as Deontological or the status-based rights and Consequentiality or the instrumental rights.

Status - theories hold that human beings have attributes that make respect for these rights appropriate. On the other hand, Instrumental theories hold that respect for particular rights is a means for bringing about some optimal distribution of interests. Status - theories belong to the tradition of natural rights theories. All natural rights theories agree that there are certain features that humans have by their nature, and which make respect for certain rights justified.

On the other hand, the Instrumental theories depict rights as instruments for achieving an optimal distribution of interests. For example, Rawls theory may define the optimal distribution as a fair one: i.e., the distribution that would be chosen from the perspective of an original position. Other contemporary normative theorists such as Ronald Dworkin, and Amartya Sen. have set out systems that give a central role to instrumental rights. On the whole, the two approaches differ sharply over the role of consequences in the justification of rights. Status theorists hold that rights should be respected because it is fitting to do so, and not because of the good consequences that will flow from doing so.

Theories of Rights

There are numerous theories of rights which explain the nature, origin and meaning of rights. The theory of natural rights describes rights as nature; the idealistic theory, like the theory of legal rights, relates rights only with the state; the theory of legal rights recognises rights as legal; the historical theory of rights pronounces rights as products of traditions and customs; the social welfare theory of rights regards rights as social to be exercised in the interest of both the individual and the society.

The concept of rights emerged with the rise of modern state and out of the criticism of the old social and political order. Its tone was radical and in its ultimate employment was revolutionizing. Historically, the demand for the individual rights was made by the rising commercial/middle class which was the product of industrial revolution. It became an accepted ideology of the American and French revolutions and was expressed in the Declaration of independence and the constitutional Bill of Rights in America and Declaration of the Rights of Man in France. Prominent liberal writers such as Locke, Rousseau, Bentham, J.S. Mill, T. H. Green and Harold Laski, Earnest Barker and a host of others have advocated the rights of the individuals on one ground or the other. In the post - war period, the concept of rights has been further expanded by John Rawls, Robert Nozick, Ronald Dwrokin and many others.

 

Theory of Natural Rights

The principle of natural rights is first and foremost among the various theories related to the rights. John Locke, in his article Second Treaties on Civil Government, published in 1690, gave the most effective statement on natural rights. But before that the theory of natural rights had been presented by Thomas Hobbes. His ideas related to natural rights can be understood by her concept called 'natural state'.

The natural rights theory propounded by Locke other liberal thinker, declared that all men are born with certain inherent right. Rights inhere in individual human being rather than in society or state. ‘God gives them to his children just as he gives them arms, legs, eyes and ears.’ Rights, according to this theory, were attributed to the individual as they are the intrinsic property of man.

Natural rights were drived from natural law and were propagated by the social contract theorists like Hobbes, Locke and Rousseau. They assumed that man had certain natural rights before the origin of the state and he surrendered some of them to a superior authority i.e. civil society in order to safeguard the rest of them. Hobbes considered right to life as a natural right.

Contemporary political philosophies which continue to believe in the liberal tradition of natural rights include libertarianism, anarcho-capitalism and Objectivism, and include scholars like Ludwig von Mises, Friedrich Hayek, Ayn Rand, and Murray Rothbard. A libertarian view of inalienable rights is laid out in Morris and Linda Tannehill's ‘The Market for Liberty’, which claims that a man has a right to ownership over his life and, therefore, also his property, because he has invested time (i.e. part of his life) in it and thereby made it an extension of his life.

Critics of Natural Rights

· It was felt that if rights are attributed to the individual absolutely, we cannot resolve the conflict between man and society. For example, in a situation like famine, one man’s right to life could be violated by hoarding of food by another man’s right to property.

· The most obvious criticism of this theory was what is meant by natural. It is found that the word nature was used in a multi-dimensional sense such as: nature as a whole universe, nature as the non-human part of the universe.

· There can be no rights without a law. Rights imply certain duties; they imply social relations on which duties can rest. As was pointed out by Green later on, every right must be justified in terms of ends which the community considers good and that which cannot be attained without rights.

· The theory assumed that one could have rights and obligations independent of society. This was an erroneous view because the question of rights emerges only in the society and in the context of social relationship.

 

Theory of Legal Right

According to this theory, there can be no right in proper sense of the term unless it is so recognized by the state. No rights are absolute, nor are any rights inherent in the nature of man as such.’

Hobbes argued that the only fundamental right of the individual, viz. the right of ‘self-preservation’, is batter maintained by the state than by the individual himself. Hence, man must depend on the state for the maintenance of his rights. He is free to do anything which is not restrained by the state.

The legal basis of rights implies three things:

(I) The state defines and lays down a bill of rights. Rights are not prior to the state but state is the source of rights,

(II) The state lays down a legal framework which guarantees rights. It is the state which enforces the enjoyment of rights,

(III) As the law creates and sustains rights never the content of the law changes, the substance of rights also chances. The legal theory of rights implies that there is no right where there is no power to secure the object of rights.

 

Criticism of Legal Right

The legal theory of rights was also found deficient by the later writers in certain respects.

· The legal theory did not cover the whole range of rights. It explained the nature of only those rights which had been given legal recognition by the state. It was incomplete because it did not tell whether that which is guaranteed is actually rights or really needed recognition. The theory assumed that what is guaranteed by the state is right.

· The legal theory did not take into consideration the rights of multiple associations in the society. For example, as Laski said, men enjoy rights not merely as members of the state but also a member of the society. He believed that to limit the rights to a single source i.e. the state is to destroy the personality of the individual and not to preserve it.

· The state does not create rights but recognizes, maintains, protects and coordinates them. As Wild remarked, the rights exist whether they are recognized or not. Higher than law is our conception of right and wrong. Rights must have a foundation of right.

· If the state and its laws are accepted as the sole source of rights, then there is no right against the state. The liberal writers like Green and Laski recognized the need to resist the state in certain circumstances. As Laski put it, the obedience to the state is limited and conditional. It is obedience to rights and not might, to justice and not to authority.

 

Theory of Moral Rights

This theory of rights is associated with idealist thinkers, though T. H. Green merged it with liberalism. Laski, like T. H. Green, erects his theory of rights on moral foundations. However, he is seriously concerned with the satisfaction of material needs of the masses. Laski is much ahead of Green in dealing with the maladies of the capitalist system.

According to this theory, every right is derived from one basic right - the right to personality. Whether it is right to life, liberty, property, education or health, they are all rooted in and are governed by the development of the personality of the individual. Rights are powers which an individual claims from the society on a moral plane and are recognized and enforced by the state through its law.

Such rights vary from time to time and from place in accordance with the moral consciousness of the community. With the growth of moral consciousness, certain rights which were once regarded as natural lose value. Every right that an individual has is dependent on the social judgment of its compatibility with the general well - being.

Rights and Duties

It must be emphasised, however that right have corresponding duties as well as obligation. The two are correlated. Rights and duties of citizens are two sides of the same coin. The relationship between them is two fold. Firstly, society functions on the principles of reciprocity.

My right is integrally related to the right of my follow human beings. The one cannot exist without the other. A society, in which people care less for their own duties and more for their rights, sooner or later, disintegrates. In their frantic effort for the vindication of their own rights at the expense of fellow human beings, society will be reduced to the status of a jungle in which ultimately the law of might will prevail. In order that everyone enjoys his or her rights it is necessary that we recognise our obligation towards others.

Secondly, logic of rights and duties also implies that if we have certain claims against the state, it is also our responsibility to contribute something towards its enrichment by doing a socially useful work. The state creates those conditions in which we can realise ourselves. In return for this, it is our duty to take advantage of these conditions and give our best to it.

One does not contribute only by being a son of a prime minister or a poet but by being oneself. I may not succeed in my life, but if I have given sufficient indications of sincere efforts to make such contribution, as I am capable of, my job is done. It is a duty of every one of us that we must develop. Our personality so as to be able to contributes our best to society. A citizen should make available valuable judgement on the various issues confronting it. One must pay one's taxes to the state and must refrain from interfering with the similar rights of the other members of the society.

These obligations by being reciprocal in character do not impose restrictions on the rights of individuals; rather, they give them fuller and greater reality. To think that my rights can be separated from my duties is to be guilty of gross selfishness. It is only by performing a useful function in society that we contribute towards its enrichment. A state in which citizens care more about their rights and less about their duties remains in a precarious situation.

 

Debate: Human Rights - Universalism or Cultural Relativism

As we are aware, the Universal Declaration of Human Rights has been in existence since 1948 when it was adopted by the General Assembly of the United Nations, however, an important issue of the past twenty years has been the conflict between two rival ideologies of human rights popularly known as universalism and cultural relativism. Most contemporary readings on the topic of Human Rights include one or more chapters on cultural relativism.

While the Universalism holds that more "primitive" cultures will eventually evolve to have the same system of law and rights as the Western cultures, the cultural relativists hold an opposite, but similarly rigid, viewpoint, that a traditional culture is unchangeable, that cultures have fundamental or essential "properties, particularly their values and beliefs.

 

Human Rights are Universal

The Universal Declaration contains three distinct sets or generations of human rights. The first set or generation, known as negative rights, consists of civil and political rights. These include right to life, equality before laws, freedom of speech and religion, freedom of movement and assembly, as well as guarantees against discrimination, slavery and torture. The second set or generation of rights known as positive rights and include a number of social, economic and cultural rights such as right to an adequate standard of living, adequate standard for the health and well - being of himself and of his family, including food, clothing, housing and medical care and necessary social services".

Now, the above rights are also called universal rights. The concept of universalism came into prominence after World War II. With the adoption of the Universal Declaration of Human Rights, countries all over the world discussed and negotiated values that would become the basis for human rights. The horrific consequences of World War II left a legacy that great harm could result in allowing individual countries or nations to define and pursue their own values (as was demonstrated by Hitler that German is the most superior race on this earth), a core concept of Human rights included in the Declaration is that those rights belong to everyone, no matter as to what status that person holds in society.

Human rights are internationally agreed values, stand or rules regulating the conduct of states of their own citizens and toward non-citizens. In the words of the Preamble of the Universal Declaration of Human Rights, these rights are a common standard of achievement for all peoples and all nations. These rules, which the member-states have imposed upon themselves, serve to restrict the freedom of states to act towards their entire population-citizen as well as non-citizen, men as well as women, whites and non-whites, believers and non- believers, married persons and the unmarried etc.

Now, the important point to remember here is that this universalistic theory of Human Rights is largely based on Western philosophy and the value it places on the individual. It is a product of Greek philosophy, Christianity and the Enlightenment thinkers which contended that one can use nature or reason to identify basic rights, inherent to every human, which pre-existent society.

Briefly, this doctrine can be stated as:

(i) All human have rights by virtue of their humanity;

(ii) A person's rights cannot be conditioned by gender or national or ethnic origin.

(iii) Human rights exist universally as the highest moral rights, so no rights can be subordinated to another person (e.g. a husband) or an institution (e.g. the state), also, it has been the practice of states to accept it, through ratification of international instruments.

 

Human Right and the Problem of Cultural Relativism

Since its inception that UDHR has been mired in controversy. There have been theoretical criticisms which include reactionary, communist, communitarian and pragmatist. Politically and ideologically motivated criticisms included socialist, Confucianist, African and religious fundamentalist as well as unaligned criticisms from developing countries.

Cultural relativism is based on the idea that there is no objective or universal standards by which others can be judged. The debate between universalism and relativism is as old as the history of philosophy itself and its discussion of truth. Relativism was introduced, among others, by the Sophist Protagoras. He rejected objective truth by saying in so many words, later quoted by Plato: "The way things appear to me, in that way they exist for me and the way things appear to you, in that way they exist for you".

Relativism as linked to culture appeared late in the work of anthropologists who demonstrated empirically that there exist in the world many different cultures, each equally worthy.

Cultural relativism maintains that there is an irreducible diversity among cultures because each culture is a unique whole with parts so intertwined that none of them can be understood or evaluated without reference to the other parts and to the cultural whole, the so-called pattern of culture. Cultural relativism refers to a view that all cultures are equal and universal values become secondary when examining cultural norms. No outside value is superior to that of the local culture. If the local culture allows female genital mutilation, then the human right prohibiting cruel or degrading treatment shouldn't prevent the genital mutilation.

There are no absolute values or principles by which any culture or society can be judged apart from those of the culture itself. This brand of cultural relativism must be distinguished from a more thoroughgoing moral relativism: cultural relativists typically do not deny truth or morality, but instead hold that while "for every culture some moral judgments are valid, no moral judgment is universally valid." Cultural relativism argues that each culture or society possesses its own rationality, coherence and set of values and it is in these terms only that one can properly interpret the organization, customs and beliefs (including ideas about human rights) of that culture or society. The cultural relativists typically maintain that there is a fundamental link between the cultural origins of a value or the principle and its validity for that culture.

Against the universalism that is the foundation of human rights; cultural relativism insists that cultural context determines pluralism in human rights, values and practices. Broader culturalism consists of the interrelated approaches of cultural essentialism (or reductionism), cultural determinism and cultural relativism. It turns culture-or cultures-into the trump card in any debate about human rights, or indeed world politics. It emphasizes the uniqueness and exclusivity of each culture. Thus, if human rights are not indigenous to a particular culture, their validity and applicability are in doubt. In Ann Maver's words, human rights are "alien and therefore incompatible" with non-Western cultural or religious traditions." The liberal doctrine of human rights does not speak the people's worldview.