Rights

“Individual have rights and that there are no things, persons or groups may do to them.”

Nozick

Rights is a modern concept. In medieval times, there was a theory of divine rights of king. It was replaced by the theory of natural rights of man.

In its origin, right is a anti-statist concept (imposes restrictions on state). The rights limits the power of the state. Not only powers of the state, it also limits the powers of society. Rights are essentially the concept of ‘liberal discourse’. Marxist consider right as ‘bourgeoise concept, based on the false consciousness that the interest of man are in conflict with the interest of society. Hence in socialist countries, there is not much emphasis on rights. They give emphasis on duties. In liberal countries, people enjoy civil and political rights, in socialist countries, they are denied civil and political rights and are given social and economic rights. Rights can be understood in different ways.

Hohfeld has given four interpretations to the concept of right.

1] Right is a claim for entitlement. It means right is a claim of a person and it enforce duty on the other.

2] Right as a liberty. It means right should give freedom to pursue, what one wants to do.

3] Right as a power. It is recognition of power of man which limits the authority of the state.

4] Right as immunity. It means rights is a type of protection which man enjoys against society and state. According to Dworkin (book – TAKING RIGHTS SERIOUSLY) Rights are trump. It means rights of an individual should be given preference over any other consideration. The consideration of community or state.

Types of Rights.

1] Civil rights: Which are necessary for civilised or dignified existence. e.g. Right to life, liberty, equality before law, right to property, abolition of untouchability.

2] Political rights: Right to participation in Political processes. Like right to vote, right to stand in election etc.

3] Social and economic rights: Rights concerned about social and economic life of citizens e.g. right to food, right to work, right to education, right to equal pay etc.

4] Legal Rights and 5] Moral Rights

Legal Rights:

Rights which are laid down in book of law. Rights which have backing of constitution or law. They are also called positive rights. For example, In Indian constitution right to Life (Art 21), Right to Religion (Art 25) etc. or even Right to compensation for land acquired by Govt. (est. by Land related laws).

Different countries have different status of legal rights. In UK, there is system called as ‘residual rights’. Rather than explicitly mentioning what it’s citizens ‘can do’, the UK laws prescribe what ‘they cannot do’. Thus it is assumed that citizens are free to do everything else. In USA & India, we’ve system of Bill of Rights. The rights, claims of citizens have been codified explicitly. It makes it difficult for state to take away such rights and usually gives rise to Judicial supremacy.

Legal Rights may or may not be in conformity with moral rights. For example, Section 377 of IPC (India) which victimised homosexuals, was struck down recently by Supreme Court.

5] Moral Rights:

The basis of these rights is moral or philosophical claims. But such rights may or may not have legal backing. For example Right of aged parents to be taken care by their children, the debate around abortion, the right of trees, animals etc. If there is no law for such rights, the court will not be able to uphold them.

Types of rights on the basis of the source of rights.

Theories of Rights.

1] Theory of natural rights.

It is an oldest theory of the rights of man. American declaration of independence 1776, French declaration of the Rights of Man and Citizens are based on the idea of natural rights. According to US declaration, natural rights are ‘self-evident truths’. Every person has right to life, liberty and pursuit of happiness given to him by God.

Theme of natural rights.

1| Self evident truths.

2| Intuition (reason) rather than institution (state) is a source of rights.

3| Natural rights are fundamental to human existence, man cannot be deprived of his fundamental rights.

4| The theory of natural rights is the absolutist view of the rights of man. It has theological origin. (Rights are given to man by God.)

Hence not much difference in the theory of natural rights of man and the theory of the divine rights of King.

There are two schools of thoughts in the theory of natural rights.

A) Social contract tradition. Found in John Locke and in Rosseau.

According to Locke, man enjoyed the natural rights in the state of nature. Reason in man teaches him, not to harm the other in his life, liberty, health and property. Right to life liberty and property are inalienable, they are man’s property, man has not transferred these rights to the state.

B) Teleological tradition. Thomas Pane (RIGHTS OF MAN), T.H. Green.

Thomas Pane believed in the concept of natural rights but did not accept the theory of social contract. Why? He found social contract illogical because there is no justification to impose the contract entered by previous generations on successive generations. Hence he suggests teleological basis. Teleology means purpose. According to Thomas Pane, man is different from animal, and hence man should posses certain rights which give him opportunity to lead the life as human.

Similarly J S Mill and T H Green proposed natural rights on teleological basis. In the words of T H Green, “Human consciousness postulates liberty, liberty involves rights….”

Rights as Trump

Ronald Dworkin develops the idea of ‘rights as trump’ in his book TAKING RIGHTS SERIOUSLY. He suggests that the rights of an individual should have priority over community / group rights. The rights are trump, means that they cannot be overridden for an ordinary reason. The sole purpose of state is maintenance of rights & any step which curtail this would be violating the reason behind existence of state itself. All arguments against curtailment of rights are useless.

Fundamental rights of individual should never be weighed against any argument, since it destabilises the very idea of rights.

The concept of balancing stands against the concept of Rights as Trump. Balancing suggests that rights of individual can be compromised under certain situations for greater good. For example, Indian constitutions suggests ‘reasonable restrictions’ on freedom of speech and expression. Even Dworkin has given some exceptions where rights of individual can be compromised. 1) When the values encompassed by a particular right are not really at sake, but in some attenuated (modified) form. 2) When the cost society has to pay in maintaining the rights is far greater than the benefits enjoyed from such right.

Habermas has also suggested that even if we assume that the human dignity usually prevails over other rights, it should not be considered absolute. There can be some unavoidable circumstances, where the right to dignity will be at least partially defeated.

2] Theory of legal rights. [J Bentham]

The theory of natural rights has been criticised by Bentham. Bentham proposed the tradition of Hobbes. In the state of nature, man had power rather than rights. In the state of nature, might is right. Only when state comes into existence, establish law and order, man can enjoy rights. The real source of origin of rights is a state and not nature. Man’s ability to enjoy rights, will be shaped by state’s capacity to provide rights. Man has liberty only where law is silent. The legal theory or rights became the dominant tradition of rights till 2nd WW. Only after 2nd WW, there is a revival of the theory of natural rights in the form of the theory of human rights. UK represents the tradition of the legal theory of rights whereas USA, France follow the tradition of natural rights or fundamental rights.

Bentham is a supporter of legal rights. In the words of Bentham

1| Natural rights are nonsense. Nonsense upon stilts. /There is no ground to this theory.

2| Natural rights are Chimera. (Imaginative character).

3| Natural rights are anarchical fallacies. (Those who claim natural rights go to the extend of creating anarchy or destroying law and order.)

4| Natural rights are terrorist language.

5| Natural rights provoke rebellion.

According to Bentham there cannot be any absolute right. Rights are properly called the creatures of law. The theory of absolute rights of man (natural rights) is as dangerous as the theory of divine rights of the king. The arguments of Bentham against Natural Rights can be summarised as:

1] Natural Rights (NR) is a vague concept. It leads to chaos because of different interpretations.

2] NR are against state, they destabilise state (terrorist language).

(Bentham’s this view was influenced by French revolution which took the turn of ‘reign of terror’ or rule of Jacobians).

3] Natural Rights are based on natural law, whereas for Bentham, law made by State is real law. Because only state creates legal and institutional support for realisation of rights.

4] Marx also criticises NR as system for protection of bourgeoise class. It gives equal rights in unequal society will only entrench the differences.

Criticism of Bentham (Justification of Natural Rights)

1] ‘Though Bentham tried to appear more exact, in practice his theory is also vague.’ Thomas Hodgskin

2] Though Natural Rights is a vague concept and suffers from limitations, yet it has contributed in the liberation of man and is being recognized as the basis of Human Rights.

3] “Bentham has destroyed everything and created nothing”. Bentham does not provide an alternative to the discourse of Natural Rights.

3] The conservative theory of rights. Edmund Burke

Like Bentham, Edmund Burke is also critical of natural rights. He does not believe that the rights are ‘self-evident truths’. Rights are the products of customs and traditions. Even when we recognize the rights of man, but there is no sanction to it from the society, man cannot enjoy rights. According to him, natural rights are metaphysical abstraction. It means based on theology or religion like divine rights. It is custom or convention rather than nature that is a source of rights. Edmund Burke was critic of French revolution as it challenged the existing order. Instead of going for some ‘untested’ theory, we should go for reforming the existing system gradually. He does not support sudden changes. According to Edmund Burke, natural rights does not bring the consciousness of the duty and discipline towards the society. Bentham’s theory of conventional rights is supported by communitarians and cultural relativists. Natural rights strengthen the theory of abstract individual and automated self whereas communitarians believe that man is situated self / embedded self.

According to McIntyre, believing in natural rights is like believing in witches or unicorn.

4] Laski’s theory of rights (Social Democratic Perspective)

According to Laski, “Rights are the necessary conditions, without which no man can seek in general to be at his best.”  Every state is known by the rights it maintains. The performance of the state is judged on the basis of contribution it makes to the substance of human happiness. The social order not based on the claims of individual is based on sand. Rights are claims but the claims which are not empty of duties. Laski believes that state should provide social and economic rights, state should control the industry, otherwise industry will control the state.

5] Three Generation of Rights

A concept offered by Karel Vasek, in 1970s. The theory categorises existing human rights in three generations of rights.

1] Civil & Political Rights

Also called as ‘negative’ rights since it only puts restrictions on state, without encouraging positive action. This is largely a product of liberal discourse. For example right to life, liberty, property etc.

2] Socio-Economic and Cultural Rights

These are positive rights since it inspires action on behalf of state. These rights are usually advocated by Socialist countries. For example right to equal wage, employment, gender equality etc.

Both 1st and 2nd gen. rights have been recognized by International Covenant of Rights in 1966 by two separate bills. And both the generations are kind of individual centred rights.

3] Solidarity Rights.

Also known as collective – developmental rights, these are to be exerted collectively and not individually. It includes right to self-determination, peace, development, environment, humanitarian assistance etc.

Human Rights

The concept of human rights originated after 2nd WW. It is based on the experiences of the atrocities committed by Hitler on Jews. Till 2nd WW, the principle of sovereignty of the state (monistic) was considered as sacrosanct. Hence there was no scope of the intervention by the international community in the domestic affairs of the state. However it was realised that there is a need to dilute the principle of state sovereignty. There is a need to recognise the role of international community. In case state violates the rights of its own citizens or persons living in the state, it becomes the responsibility of the international community to come forward for the protection of the rights.

The universal declaration of human rights (UDHR) on 10 Dec. 1948, The international covenants on civil and political rights 1966, The international covenants on the social and economic rights 1966 together constitute international bill of rights.

The universal declaration is based on 1) Locke’s theory of natural rights – that natural rights are self evident truths. 2) Immanuel Kant’s theory of concept of human dignity. According to Immanuel Kant, man is different from animal, man posses reason, hence all human beings deserved to be treated with respect.

According to the theory of human rights, irrespective of caste, class, gender, creed, nationality, there are some basic minimum rights which should be available to all just because they are humans. Hence whether the constitution of the country recognizes or not, it will be assumed that people posses human rights. The fundamental theme of human rights is the idea of ‘universalism’. However it is also the most contested issue in human rights discourse.

Five essential features of human rights.

1| Equality: Since all are humans, all are to be treated equally. It means all should be given equal rights. This very first characteristic makes human rights highly controversial. In most of the non-western societies, women do not have equal status to men. For the activists of human rights, not giving equal rights means treating women less than human. However many countries find such advocacy as the imposition of western value.

Women rights are the most controversial aspect of human rights. According to women rights activists, like Hillary Clinton – Human rights are women rights. Hence she advocated feminist foreign policy.

2| Universalism: By definition, the idea of human rights is universalist. It means irrespective of the nationality all are to be treated as humans. Hence all should posses some basic minimum rights. So far there is no agreement on what rights will qualify to be ‘basic minimum’ there is a big difference in the approach of the western and non-western countries. The political leaders for non-western countries suggest ‘cultural relativistic’ perspective. e.g. The politicians of South East Asia calls for Asian values. However western scholars consider Asian values as the justification of the soft authoritarianism. For supporters of Asian values, social and economic rights will have primacy but for western world civil and political rights are the minimum guarantees.

3| Individuality: Human rights are to be enjoyed by human beings as an individual. Human rights are based on the concept of the autonomy of man. The concept of atomistic man is criticised by Bourgeoise concept of Marxist as well as criticised as abstraction by cultural relativists and communitarians.

4| Inalienable: Cannot be taken away from individual. Man posses these rights just by virtue of being a human being.

5| Permanent: These rights are not circumstantial. Man possess these rights on a permanent basis.

Debates on human rights.

The theory of human rights is one of the most contested issue in international politics. Though there is a agreement that there should be the recognition of human rights, yet there is no agreement over which rights are to be considered as basic rights

Some of the theoretical debates centred on following issues:

1] Definition of humans: There is no consensus even on the definition of humans. One of the most contested issue is whether terrorists can be regarded as humans and should be given the basic minimum rights.

2] When human life begins? e.g. there is a debate over abortion right in many catholic countries. It is not clear whether human life begins after birth or in the womb of mother.

3] Who should be the guardian of human rights? Since states are the principle actors, states are supposed to be the protectors of human rights. However human rights as a concept is anti-state. It weakens the powers of the state. Hence states go for moral guarantees, but in practice unable to deliver.

Philosophical debates

The major debates focuses on the universalists assumptions. There is a challenge to universalism by a) Value pluralists b) Cultural relativists c) Multiculturalists. There is a difference in the basic assumptions with respect to human nature, the relationship between state and human beings, man and his community.

However the major discontent arise because in the name of universal values western countries promote western values. It is seen by some of the countries as an attempt of cultural imperialism. Hence there is a lack of consensus over, what basic rights should be given to the people.

Cultural Imperialism

It suggests an attempt by West to impose its values and culture on rest of the world. For example the attempts by USA to establish democracy in Iraq. Or the criticism of the social/political practices in East, when viewed by westerns scholars from an ethnocentric viewpoint. The values of capitalism, individualism, rights etc. are not part of culture of Indian & Asian societies. But the cultural imperialism, the cultural hegemony of West has led to penetration of such values in East as well.

1] Value Pluralism

The concept is given by Isaiah Berlin. Isaiah Berlin is a supporter of liberty. He defines liberty in terms of absence of external interference (negative liberty). He views positive liberty as a totalitarian idea.

Isaiah Berlin is also a pluralist. Isaiah Berlin suggests that ‘toleration rather than liberty’ is the core value of liberalism. We can call toleration as ‘substantive’ heart of liberalism. Enjoyment of liberty is itself dependent on toleration. Liberals cannot be orthodox. They cannot be orthodox even with respect to the idea of liberty or freedom. Only liberals can be expected to be tolerant.

According to Isaiah Berlin, there can be different ways of life, each may be equally valuable for the people adhering to these values. Hence we have to be tolerant towards the different ways of life and different values. e.g. There may be a person who believes in the primacy of liberty, there may be a person who believes in the primacy of equality. It means people can have different preferences. and different preferred way of life.

He also highlights the fact that values themselves are inherently pluralistic. It means there may be a different meanings of the same values for different people. Within liberalism, there is no consensus over the value of liberty itself. Some believe in negative liberty and others believe in positive liberty. Similarly equality may have different meanings. Some may talk about the equality of outcomes, others may talk about equality of opportunities.

Values are not only inherently pluralistic they are incommensurable. It means they cannot be measured or quantified. If we cannot measure or quantify, we cannot fix the order of priority. Isaiah Berlin is critical of Rawls. Rawls in his theory of justice gives lexical order. A fixed order of priority. e.g. The concept of justice as ‘fairness’ gives priority to liberty over equality of opportunity and priority of equality of opportunity over the ‘difference principle’.

Thus he suggests that there cannot be any hierarchy of values. Hence state should not try to impose any specific way of life. He gives an example of the life of a nun and a married woman. It is not possible to suggest which life is superior. Both value their own way of life. The only way to decide the priority is through the bargain, debate, dialogue. Whatever choice we will make is going to be ‘hard choice’. They are incommensurable.

In the words of Isaiah Berlin, “The world that we encounter in ordinary experience is the world in which we face choices between ends equally ultimate, claims equally absolute, the realization of some of which must inevitably involve the sacrifice of the other.”

Though Isaiah Berlin talks about value pluralism, yet he believes that there are some ‘generic values’ upheld in all societies. e.g. Honesty, Courage, Bravery. It is to be noted that value pluralism is a theory of ‘meta ethics’ rather than ‘normative ethics’. Value pluralism needs to be differentiated from a) Value monism.  b) Value relativism.

Value monism believes in the supremacy of a particular value e.g. if liberals suggest that liberty is supreme value, this attitude will be called as value monism.

Value relativism denotes indifference with respect do different values. (It means it does not matter). Value Pluralism denotes preference or belief in a particular value, yet exercising toleration.

Toleration is called as substantive heart of liberalism. The term toleration comes from the Latin word tolerate which means to bear (bear something). Toleration is a deliberate act of self restrain. It is a deliberate act of self restrain towards the actions or ideas with which a person completely disagree. Toleration should not be understood as indifference, weakness or appeasement. A tolerant person does not retaliate, not because that person lacks capacity but because that person believes in toleration. We can quote Voltaire to understand the meaning of toleration. “I strongly detest what you say, yet I will defend to death your right to say.”

Relevance of value pluralism with respect to human rights.

It may be a practical approach to remove the confrontations by making attempts to secure the protection of human rights. West should not be imposing its value system on the rest. The best way to resolve the conflict is through dialogue. Dialogue among civilisations. Imposing human rights and democracy at gunpoint may do greater harm.

2] Multi Culturalism.

1] Will Kymlicka (Liberal multiculturalist): MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS, 1995. 

2] Bhikhu Parekh: RETHINKING MULTICULTURALISM.

Central theme of multiculturalism is protecting the rights of minorities.

a) Protection and promotion of the religion and culture of minorities.

b) Giving minorities a voice in policy making. 

Minority can be understood as ‘non-dominant’ section of the society. In the age of globalization the world has become much closer. We are interacting more, there is a greater movement of people, societies have become more diverse. Hence either it can lead to ‘clash of civilisations’ because we are getting more conscious about our identities or it may result into the emergence of ‘cosmopolitan’ world order, but that requires toleration, pluralism and respect for human dignity. Western countries primarily USA and France are turning more and more exclusivists, challenging the fundamentals of liberal way of life.

Hence the idea of multicultural citizenship has been proposed, as the idea of universal citizenship appears limited. It is to be noted that Indian constitution formally incorporates the idea of multicultural citizenship as it recognizes the special rights of minorities as the fundamental rights. Art 25 and Art 28,29 of COI.

The idea of multicultural citizenship is based on the belief that if a person is born in a minority religion, he or she should not suffer from the disadvantage. It is just a matter of chance. It is not his fault. e.g. We cannot hold people responsible for the choices which they have not made.

Ideas of Will Kymlicka

Will Kymlicka has proposed the theory of multicultural citizenship to be adopted by western countries. He suggests western countries to give special rights to the minorities.

1. Polyethnic rights: Religious and Cultural rights.

2. Special representation rights: Like reservation in India.

3. Self governance rights: In case the community is concentrated in a specific geographical area. e.g. Special right of J&K

However he suggests special rights only to ‘national minorities’ and not to the immigrants or refugees. Immigrants have voluntarily chosen to live in the country of immigration. Hence they should be adopting the value system of the country where they are immigrating. Why not to the refugees? If we start giving such rights to the refugees, it will lead to more displacement. Instead of giving special rights to refugees, international community should force home government to respect the rights of minorities.

Views of Bhikhu Parekh: RETHINKING MULTICULTURALISM.

Post colonial perspective: Bhikhu Parekh has been advisor to the British government over the immigration issues. He does not find any logic in not extending the special rights to non-citizen minorities. It is wrong to believe that culture or religion will not matter in case of immigrants or refugees, but it will matter in case of national minorities. There is no logic of depriving non nationals / non citizens from enjoying such rights. Culture is a part and parcel of person’s identity. It is not possible to respect a person without respecting his religion or culture.

Bhikhu Parekh has suggested the application of ‘harm principle’ in deciding the special rights that can be given to the minorities. In the name of nationalism or uniformity, we actually impose majoritarian culture. e.g. Sunday is a holiday is a universal practice but it is based on the Christian tradition, which became universal because of colonialism. Hence he suggests that there is no harm if state permits Muslim workforce to observe holiday on Fridays. Similarly there is no harm in giving exemption to Muslim girls wearing scarves in the school.

According to Bhikhu Parekh, in the name of universalism and rationalism, majoritarian customs and traditions are introduced on minority. According to him, the universal principle governing human society or human rights cannot be based on the values system of any single civilization, it has to be based on the dialogue among civilizations. He is optimistic that when people belonging to different civilization will enter into dialogue, they will definitely arrive at some common values. He believes ‘human dignity’ is one such value which can be accepted by all.

3] Cultural Relativism

The concept of cultural relativism is attributed to Franz Boas. According to cultural relativism, culture is the intrinsic part of man’s personality. And every culture is rational, we cannot establish the hierarchy or primacy of one culture over the other.

Cultural relativism overlaps with the philosophy of ‘communitarianism’. Communitarianism suggests that man is ‘situated self’. It means persons conception of right and wrong is never independent of his community.

Context of the cultural relativist perspective on human rights.

Against the declaration of so-called ‘universal human rights’ (UDHR), there has been opposition to the idea of ‘universalism’. There has been reaction against UDHR by the leaders of non-western world primarily south east Asia. Hence these leaders called for ‘Asian values’. They interpreted UDHR is not universal rather based on Western values. It was seen as an attempt of cultural imperialism. Hence there was a call for ‘particularistic’ or ‘relativist’ perspective, rather than universalist. Thus for cultural relativists, the conception of rights cannot be independent of community’s conception of right and wrong. If universal declaration of human rights (UDHR) is based on the theory of natural rights, cultural relativist perspective come near to Edmund Berk’s conservative theory.

Criticism of multiculturalism / cultural relativism.

1] Criticism by feminists:

Scholar: Susan Moller Okin. GENDER, JUSTICE AND FAMILY.

According to her, multiculturalism is bad for women. Most of the cultures are discriminatory against women. Hence until and unless we take some universalist conception of basic minimum human rights, we will continue to force women to play subordinate role.

2] By liberal scholars:

1. Amartya Sen: Multiculturalism leads to ghettoization. It is not conducive for the national unity in the long term.

2. Brian Barry: According to him, too much consciousness of culture leads to mobilization of people on such issues, which ultimately results into, the failure of achieving the developmental goals.

3. Cosmopolitan Scholars: Jeremy Waldron, Seyla Benhabib. According to them, multiculturalism prevents the emergence of cosmopolitan culture, it is based on the assumption that human beings do not have the capacity to understand and adopt each other’s culture.