Law and You> Jurisprudence > Theories of Rights
The noun right has different meanings resulting in the ambiguity of its exact meaning. In jurisprudence, we find a bitter discussion and disputes about the exact meaning of the term “Right”. In general, we discover a particular action is right by checking whether it is consonant with the general legal, social, and ethical principles. In the religious context, the action to be right should be consonant with moral principles as guided by religion. In this article, we shall study the concept of Rights and different Theories of Rights.
Rights:
Rights are those essential conditions of social life without which no person can generally realize his best self. These are the essential conditions for the health of both the individual and his society.
- According to Laski, “Rights are those conditions of social life without which no man can seek in general, to be himself at his best.”
- T. H. Green explained that “Rights are powers necessary for the fulfilment of man’s vocation as a moral being.”
- Beni Prasad stated that “Rights are nothing more nor less than those social conditions which are necessary or favourable to the development of personality”
Characteristics of Rights:
- Rights exist only in society. These are the products of social living.
- Rights are claims of the individuals for their development in society.
- Rights are recognized by the society as common claims of all the people.
- Rights are rational and moral claims that the people make on their society.
- Since rights are here only in society, these cannot be exercised against the society.
- Rights are to be exercised by the people for their development which really means their development in society by the promotion of social good. Rights can never be exercised against social good.
- Rights are equally available to all the people.
- The contents of rights keep on changing with the passage of time.
- Rights are not absolute. These always bear limitations deemed essential for maintaining public health, security, order and morality.
- Rights are inseparably related with duties. There is a close relationship between them “No Duties No Rights. No Rights No Duties.” “If I have rights it is my duty to respect the rights of others in society”.
- Rights need enforcement and only then these can be really used by the people. These are protected and enforced by the laws of the state. It is the duty of a state to protect the rights of the people.
Theories of Rights:
There are compelling theories of rights offered by several theorists.
Utilitarianism:
Although forms of utilitarianism have been put forward and debated since ancient times, the modern theory is most often associated with the British philosopher John Stuart Mill (1806- 1873) who developed the theory from a plain hedonistic version put forward by his mentor Jeremy Bentham (1748- 1832). It is a theory of morality. It advocates actions that foster happiness or pleasure and opposes actions that cause unhappiness or harm when directed toward making social, economic, or political decisions. A utilitarian philosophy would aim for the betterment of society as a whole. It would say that an action is right if it results in the happiness of the greatest number of people in a society or a group. Utilitarianism considers the interests of all humans equally.
A utilitarian will honour a right if and only if it will lead to the maximisation of utility. If the exercise of a particular will not maximise utility, the utilitarian is obligated to violate that person’s rights for the sake of utility. The point at which the letter of the right defeats the purpose (i.e. the point at which the exercise of a particular right will not maximise utility) is the point at which society may justly curtail that right. Rights are limited by the utility principle. If the exercise of a right maximises the good, the right ought to hold. If it fails to do so, the right may be justly abridged. Challengers of the utilitarian account of rights argue that in some cases it extends rights too far and in other cases, it restricts rights unjustly.
Criticism to Utilitarianism :
- It is not always clear what the outcome of an action will be, nor is it always possible to determine who will be affected by it. Judging an action by the outcome is therefore hard to do beforehand.
- It is very difficult to quantify pleasures for cost/benefit analysis
- The calculation required to determine the right is both complicated and time consuming. Many occasions will not permit the time and many individuals may not even be capable of the calculations.
- Since the greatest good for the greatest number is described in aggregate terms that good may be achieved under conditions that are harmful to some, so long as that harm is balanced by a greater good.
- The theory fails to acknowledge any individual rights that could not be violated for the sake of the greatest good. Indeed, even the murder of an innocent person would seem to be condoned if it served the greater number.
Kantianism (Deontology):
The term deontology comes from the Greek word deon, meaning duty. The theory of deontology states we are morally obligated to act in accordance with a certain set of principles and rules regardless of the outcome. Immanuel Kant, the theory’s celebrated proponent, formulated the most influential form of a secular deontological moral theory in 1788. Kant proposes that the essence of morality is captured by what has been called the Categorical Imperative. The Categorical Imperative is a rule for testing rules of conduct. It will exclude as immoral any rule of conduct that implies that one person may do something but another, in relevantly similar circumstances, may not. In other words, it demands consistency. What’s all right for me is all right for you if our relevant circumstances are similar. If I may throw my toxic waste into the river to save money for myself, then you may do so likewise. But of course, I would not want you to do that, so it would be wrong for me. This is relevant to human rights because we think of human rights as universally applicable to human beings. And Kant says that what is morally permissible applies to all rational beings. It is also relevant that this test tends to endorse rules of action that protect our most basic interests, just the sorts of things that rights protect.
The deontological theory differs from utilitarian theory in several key ways. The most notable difference is utilitarianism aims at a goal of greatest happiness (or the best consequence) and justifies any act that achieves that goal. The deontological theory holds that some acts are always wrong, even if the act leads to an admirable outcome. Actions in deontology are always judged independently of their outcome. An act can be morally bad but may unintentionally lead to a favourable outcome.
Kantianism is an explicitly non-consequentialist ethic. Ethics must be a matter of intentions, these being the only things we can evaluate without extrinsic influence. The right action, therefore, is that which is done in conformity with our moral duty, regardless of consequence.
Criticism to Kantianism (Deontology) :
- One of the biggest criticisms of Kantian ethics is that it discounts outcome as a valid factor in evaluating the morality of an action. While it is not necessarily wise to rely solely on outcome (as in utilitarianism /consequentialism), it is not a good idea to completely ignore the outcome altogether. Based on Kant’s formula of humanity, human life is sacred and inviolable, meaning one cannot enslave a few people even if it would enable more people to lead better lives. Killing one person to save the lives of millions is impermissible in Kantian ethics.
- At times Kantian moral duty seems to contradict our natural inclinations and common sense. If we obey the moral law rather than our intuitions, we are acting morally.
- Deontological ethics is weaker when it comes to informing us how to live well or developing virtues of character.
Laski’s Theory of Rights:
Harold Laski (1893-1950), a theoretician of the English Labour Party, an influential figure and creative writer of political science, who authored about 20 books, has expounded the theory of rights and it is in many respects a classic representation. He describes rights as “those conditions of social life without which no man can seek, in general, to be himself at his best”. Laski’s views on the nature of rights run as follows:
- they are social conditions, given to the individual as a member of the society
- they help promote individual personality, his best-self: ‘those social conditions without which no man can seek to be his best self’
- they are social because they are never against social welfare; they were not there before the emergence of society
- the state only recognises and protects rights by maintaining them;
- rights are never absolute: absolute rights are a contradiction in terms
- they are dynamic in nature in so far as their contents change according to place, time and conditions
- they go along with duties; in fact, duties are prior to rights; the exercise of rights implies the exercise of duties
Laski calls rights as conditions of social life. Rights are a social concept and are deeply linked with social life. He places rights, individuals and states on the same board in the sense that they cannot be separated from each other and there is no antagonism between them. If Laski were to give rights to the individual, he would give them in this order: the right to work, right to be paid adequate wages, right to reasonable hours of labour, right to education, right to choose one’s governors, followed by other rights. Laski’s argument is that without granting economic rights first, an individual cannot enjoy his political rights: political liberty is meaningless without economic equality: ‘where there are great inequalities, the relationship between men is that of the master and the slave’. Equally important, but lower in order is the right to education: education alone helps an individual exercise these other rights properly. With the economic and social (education rights) at one’s disposal, there is a greater likelihood of the individual exercising his political rights in the right earnestness.
On legal theories of rights, Laski examines the legal theory of the state. The central principle of the legal theory of rights is that they completely depend upon the institutions and recognition of the state. An individual cannot claim rights if those are not recognised by the state. Mere recognition, moreover, is not sufficient for the exercise of rights. The state must, through law and institutions, implement the rights. The theory emphasizes the relation between right and duty. He stated that Rights are correlative to functions. The functional theory emphasizes that an individual is entitled to claim rights only when he performs duty otherwise the claim or demand for right cannot be entertained. This definitely opposes the widely known theory of legal theory of rights. But today, rights are recognised and protected mainly on political considerations.
Barker’s Theory of Rights:
So far as the theory of rights is concerned, Barker’s view is not conceptually different from that of Laski. Both are liberal philosophers, but Barker has a clear bias to idealism. Barker endorses the views of Laski and Green when he says in his explanation of the nature of rights that the rights of an individual are embodied in him but these are parts of the whole system of rights and of justice. According to Barker’s theory, the main purpose of every political organisation called state is to see that the personality of the individual gets ample scope for development. It is the duty of the state to guarantee and secure the conditions essential for that objective. These secured and guaranteed conditions are called rights. An Individual’s personality cannot develop automatically or under the most adverse or antagonistic environment. Development of personality requires favourable conditions and these are to be guaranteed by the state through the enactment of the law. Barker also discusses the moral aspect of rights. He says, that the law of the state helps me to secure rights. But rights are claims and the origin is the individual himself. An individual is a moral person and it is his determination that he will develop his moral personality through the rights. His purpose is not to inflict any harm upon society. The implication of moral being is,- he releases his best efforts for the general welfare of society.
The Marxist Theory of Rights:
The Marxist theory of rights is understood in terms of the economic system at a particular period of history. A particular socio-economic formation would have a particular system of rights. The state, being an instrument in the hands of the economically dominant class, is itself a class institution and the law which it formulates is also a class law. So considered, the feudal state, through feudal laws, protects the system of rights (privileges, for example) favouring the feudal system. Likewise, the capitalist state, through capitalistic laws, protects the system of rights favouring the capitalist system. To secure rights for all in a class society, the Marxists argue, is not the object of the class state; rather its aim is to protect and promote the interests of the class wielding economic power. According to Marx, the class which controls the economic structure of society also controls political power and it uses this power to protect and promote its own interests rather than the interests of all.
The Marxist theory of rights, like Marxism itself, suffers from its deterministic ideology, though its emphasis on the non-exploitative socialist system is its characteristic feature. Neither the economic factor alone provides the basis of society nor the superstructure is the reflection of only the economic base; non-economic forces also play their role in determining the superstructure.
Conclusion:
Rights are social claims necessary for the development of human personality. These belong to the individuals and they provide conditions without which they cannot seek to be themselves. They are social, given by society and secured by the state. Even the state cannot take them away from the individuals. They reflect a particular stage of the development of society. As society changes, so do the character and content of rights. Theories regarding rights reflect partial treatment about their meanings, origin and nature.