Chapter 4 Human Rights Theories Some theories have been propounded in past to explain the rights of individuals known as rights of mankind, natural rights or human rights. They are: 1) Natural Law Theory of Rights _ The credit to giving birth to Natural Law goes to Greeks. It engaged the attention of eminent Greek Scholars such as Socrates and Aristotle. After the Greeks it was further developed and elaborated by the Romans. The early and original law of Romans was called ‘Jus Civil.’ Later on, the Romans developed another legal system called ‘jus gentium.’ In the republican era of Rome, ‘jus gentium’ was reinforced by ‘jus natural’ (natural law). By ‘jus natural,’ the Romans meant “the sum of those principles which ought to control human conduct because founded in the very nature of man as a rational and social being.” According to Romans, natural law embodies the elementary principles of justice which were the dictates of right reason. In other words, those principles were in accordance with nature and were unalterable and eternal. Natural rights theory has been derived from the natural law theory. The concept of human rights can be located in the notion of ‘natural rights.” John Locke was the chief exponent of natural rights theory. ie (According to Locke, certain rights are ‘natural’ to individuals as human beings, having existed even in the ‘state of nature’ before the development of societies and emergence of the state. Proponents of natural rights urged that ‘natural rights are rights belonging to a person by nature and because he was a human being, not by virtue of has citizenship in a particular country or membership ina particular religion or ethnic group. As natural rights are intrinsic and independent of rights provided by the state, the latter can be viewed as having the function of protecting these natural, human rights. In other words, the state is merely a guarantor of rights — it is not the fundamental source of these rights (the rights inherent in individuals) and it cannot take them away. Simultaneously, the inalienable nature of these rights makes it impossible for a person or institution to waive them: Under the natural rights approach, human beings are entitled to certain basic and ‘natural’ rights that define a meaningful existence. On the same lines, equal dignity of all persons in the central tenet of human rights. 2) Social Contract Theories of Rights ‘The Social Contract Theory became popular through the writings of Thomas Hobbes (1558-1679), John Locke (1632-1704) and Jean Jacques Rousseau (1719-1778). They propagated that a superior power, either manual or legal 23of the soc a ands 0 the commands : interest and kept itself : Josely linked with the theory of natural lay, los ral law theory were formulated was the in purs dertook to obey heir common ae aoe af vibe natut because the basis upon which TT a) same for the Social Contract state of nature! within Which dina n Jpbes, man existe ‘ Tid d exclusively by matters of self-interest{According to John would be preoccupied © seerhere men and WOMEN Wer, astate of natut cl iman bein; s existed in a st aes ees 7 eae of eda able to determine their actions and also in a State of ina st it “ned that in such a state of nature, no one was lity. Locke further imagined 1 t a el to the will or authority of another. Subsequently, in order to avoid ea ce of the state of nature they entered into a certain hazard and inconvenien' contract, some sort of social contract, whereby they mutually agreed to forma community and set up a body politic. But they retained certain natural rights, such as, right of life, liberty and property. It was the duty of the Government to respect and protect the natural rights of its subjects, A Government which failed or neglected the said duty would forfeit its validity and office. Rousseau states, “what man loses by the social contract is his natural liberty and an unlimited right to everything he tried to get and succeeds in getting; a eo per and the Proprietorship of all he possesses. If we are fia be Sahai aenine the other, we must clearly distinguish liberty ait aie m led only by the strength of the individual, from civil effect a 1 fos Gr the 'y the general will; and possession, which is merely the founded only os an att of the first occupier, from property, which can be ae oa pboslite title, We might, over and above all this, add, to what ‘uites in the civil state, moral liberty, which alone makes hi truly master of himself; for the mere j ; re impulse of appetite is sla i i Which we prescribe to ourselves is thet. rina meee was establishes collectively Un ned them in ¢ gover jal contract theo! ‘According to Hol the state from ji rights interfering wi ghts to men a way the concept of in a With the exercise of a at the same time, to preve™ Fights Was established. Then: Natural and impo ents OY the people. In ialneg ties ofthe soci gentle nature of 0 : ' © eoncept of natural Hay “ cine bad at = provi i strengthened and rey; dynamic contents,U-I, Ch.4] Human Rights Theories 25 3) Utilitarian theory of Rights or Legal Rights Theory . _Jermy Bentham has criticized the natural right theory as ‘nonsense upon_ 1) sits, Heras advocated legal rights theory base’! on utilitarianism. The utilitarian principle Tequires Governments to maximize the total net sum of the happiness of. all their subjects. Thi: inds in contrast to natural rights theory, which prioritizes the specific basic interests of each individual ae Bentham postulated that all human actions ought to be governed by the pleasure causing and pain — causing consequences for the human beings in question. In the opinion of supporters of legal right theory, rights are the creation of, state. As such, they are neither absolute nor inherent in the nature of man. Another famous representative of utilitarian thought is John Stuart Mill. Like other utilitarians, JS Mill allows that in moral and legal practice, justice and rights may be considered superior to the liberty to pursue satisfaction of interests. However, they maintain that justice and rights derive from these interests and desires, and thus are to be given context by determining what is necessary to maximise the satisfaction of the latter. per the Legal right theory of utilitarianism, rights are the creation of State. As such, they are neither absolute nor inherent in the nature of man. Thesé rights such as right to life, liberty or property are artificially created by the law of the land. Hence, the recognition of a right by State is necessary for its enforcement. Bosanquet says, "A right-— has both a legal and moral reference. Itis a claim which can be enforced at law, which no moral imperative can be, but it is also recognised to bea claim which ought to be capable of enforcement at law, and thus, it has a moral aspect---- A typical ‘right unites the two sides. It both is, and ought to be, capable of being enforced at law. oey*) 4) Social Welfare Theory of Rights (Social Expediency Theory of Rights) C Roscoe Pound and Prof. Chaffee supported this theory. They believe that law, custom and natural rights all are conditioned by social expediency. For instance, right to freedom of speech is not absolute but rather regulated in accordance with the requirements of social expediency. They have advocated for the ‘greatest happiness of the greatest number's) : ia has played important role in development o! pain Seal i nian vote them in Universal Declaration of hts and incorp’ ic, Social Human Rights and then in the International Convention on Economie, Social and Cultural Rights. 5) Positivist Theory of Rights — , A nee coma in respect of the rights was adopted by the positivists. The positivism was in vogue in 18th and 19th Centuries. Positivists believed that rea Ie would be bound to obey law, if it was created by srpmneaits legislative authority or sovereign irrespective of its being reasonable orWA chy Human Rights Law ivism’ ie. 1aw Which = 4 called this law, ‘Law pos itiVIS unreasonable. The pos cls law, 18 vr contrasted with law which oug tham and Austin, Hons Kelsen is a famous proponent of a concept of the ‘Basic Norm (or Grund norm) restricts Apart from ie aaa of positive laws and thus contributes to the idea of human the contingency . ne the source of human rights lies in the enactmen, ‘According to the positivists, : ; a ct ofa stem of with sanctions attached to it. They emphasized the distinction between ‘is’ and ‘ought’ and criticize natural law theorists i undue emphasis on ‘ought’ and for blurring the distinction between the two7 ‘The modem exponent of positivism is Prof. H.L.A. Hart. According to him, there is a distinction between invalidity of law and the morality of law. This is the basic difference between natural rights theory and positivist theory, According to the positivists, a law to be valid must be enacted by an appropriate legislative authority. Such a law remains valid, irrespective of its morality. 6) Marxist theory of Rights ArPiny Karl Marx rejected the theories of natural law and justice as he considers them mere ideologies based on misperceptions of reality. He does not reject the idea of human rights, but questions its implementation. He does not conceive the rights of individuals as distinct from the rights of the society as a whole. According to Marxists, only by achieving the upliftment of the society or community, the higher freedoms of individuals can be achieved. Thus in view of Painter i eal of dials eninge illusion They reg a cones : ‘er sae notion of individual rights is a bourgeois historical categories whose content wn nets: democracy, freedom etc., as 7 Sories whose content is determined by the conditions of life ofU-1, Ch.4] Human Rights Theories 27 established. The content of notions and ideas change in accordance with the change that take place in the lives of People living in society. 7) Morality of Law theory of Rights * Lon L-Fuller s between the moral Ys the role of law in human society is the dichotomy S of “duty” and ‘aspiration.’ The ‘morality of aspiration’ refers to the struggle for excellence and the full realisation of man’s faculties in any human society. Conversely the ‘morality of duty’ regulates and enforces the minimum standards required within an ordered society. ies According to Fuller, law does enforce the minimal acceptable standards of human conduct. Furthermore, where the law confers right (for example, freedom of movement or the licence to Practice a certain trade or profession), it is apparent that such rights do not ensure that excellence will be achieved in the sphere of activity in question. He asserts that the legal regime can and does create the necessary conditions for human endeavour and achievement of Rights. 8) Theories of Rights based on Justice (Liberal — Egalitarian theory of Rights) John Raw1 is the chief exponent of this theory. According to him, “Justice isthe first virtue of social institutions. In his view, the role of justice is crucial to the understanding of human rights. Indeed human rights are an end of justice. The principles of justice provide a way of assigning rights and duties in the basic institutions of society and also define the appropriate distribution of the benefits and burdens of social co-operation. The general conception of justice behind the principles of justice is one of fairness. The concept of fairness throughout in theories based on justice. The concepts of fairness and justice help to determine all social primary goals, such as, liberty and opportunity, income and wealth and the leases of self — respect which are to be distributed equally unless an exception is made for the benefit of least forward. Ronald Dworkin desires protecting society from the potential excesses of Utilitarianism by giving weight to individual rights. All citizens, of a state have to be treated equally. Thus, individual human rights as a creation of politics and entrenched as fundamental rights in the constitution, cannot be sacrificed in the name of the common good of a majority. 9) Theory of Rights based on equality of respect and concern ‘The significance of Dworkin's jurisprudence lies in his emphasis on “rights.” Inorderto display moral integrity. Dworkin states, judges are required to remain faithful to the legal rights of the parties. Thus the most desirable result in any case would be one that protects rights that are implicit or explicit in the fundamental values of the legal system. Dworkin’s philosophy prioritizes rights Over larger community goals or interests. Dworkin has affirmed the utilitarian principle that ‘every body can count for one, nobody for more than one. He even advances the idea of stateis view a right to liberty j, specific liberties such ag ‘oht of 3 ssociation and personal and worship, ng ae government interference, ht oran unrestricted calculatio,, too vague 10 freedom of Specs cial prot treet relation require SPECM ulation icti sen a ‘were left to a utilitarian a in favour of restriction instead op these liberti the balance would ti +5 theory of rights based op 5 of Dworkin’s overnment must treat all their ci general interest. The basis premises OF Equality of respect and concer 1S ‘vith equal concern and respect Theo! i intent of Rights with a variable conte ; p 10) Lea of natural Jaw underwent significant change with the change . 7 jodern writers a of times. Basing their views on Kant and Hegel, the m aera dopted natural law in accordance with times and circumstances. e chief exponents of this movement were Stammler and Koheler. Stammler conceded that natural law could be adopted to the changing times and circumstances although its fundamental or basic principles remained unalterable. He provided the theory of natural law of Rights with a variable content. 11) Theories of Rights based on dignity The exponents of this theory regard the protection of human dignity asa Papo dbjective of social policy. Followin, ig. a value policy oriented approach aman wight ae a fuman dignity, they point out that the demands for wands, for wide shari i rights depend for effective ee sharing a the values upon which human According to them there are eight Tnerd ae earl | PrOcoese hts depend. They are i) respect, ii) lependent values upon which human health, vi) skill, vi + 11) power, iii) enlightenment, i i |. vii) affection, viii) re nt, iv) wellbeing, v) of theories based on divnite 1 rectitude. The ultimati eee on dignity is to ensure a world 'e goal of the exponents tribution of values, all available resome en lt Which there i jount obj maximum and wher e human dignity, pan 12) Historical Theory of Rights eal theory of rights maint ‘ains thi 6 i» (at the rights are the creation of 3 of time concretise in Read which people think ton of having on, ve been accustomed (0 Ce Possessed, Custom is lose Ie) Many of th, broken custom, fo natural i i StOM, for exam vehS ha in the Magna Car Sn ve the sane ti ishmes te longest and the least len, Whi ich have found mentionU-I, Ch.4] Human Rights Theories 29 ——_——. $m rs iheores CU 13) Idealistic Theory of Rights (Personality Theory of Rights) \The-idealistic theory insists on the inner development of man, on the development of his full potentiality, which is a supreme right. All other natural rights such as, right to life, right to liberty or right to property are derived from this fundamental right of Personality, which is the only absolute right. >» As there are a number of theories relating to human rights, no single theory can satisfactorily explain present state and development of human rights. However, the natural rights theory based on natural human conditions seems to be more akin to the present concept and development of human ri ights. Theory of natural rights along with the theories based on justice, dignity, an equality of respect and concern may go a long way to explain the present trend of respect for and protection of human rights.