Question 5 : Define rights. Enumerate different theories of rights.
rights are the common claims of people which every cultured society recognizes as essential claims for their development, and which are therefore enforced by the state.
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”
Other moral theorists like Isaiah Berlin defines rights in terms of positive liberties and negative freedoms. A positive right is an entitlement to; A right to free expression, for instance, entitles one to voice opinions publicly. A negative right is a freedom from; Freedom of person is a right to be free of bodily interference. Most rights are both positive and negative.
Main features 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:
For the utilitarian, the just action is that which, relative to all other possible actions, maximises utility or “the good” (defining “the good” is the subject of philosophical conjecture and beyond our scope here). This is the utility principle. Utilitarianism is solely consequentialist; the justice or injustice of an action or state of affairs is determined exclusively by the consequences it brings about. If an action maximises utility, it is just. On this account, therefore, rights are purely instrumental. It is also worth noting that many in the utilitarian tradition have expressed hostility to the notion of rights of any sort. Utilitarian will honour a right if and only if it will lead to the maximisation of utility. This statement also indicates the limits of all rights. 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.
Kantianism (Deontology):
Kant proposes that the essence of morality is captured by what has been called the Categorical Imperative. In below paraphrase, this reads:
Act only on those rules of action that you could be universal laws.
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.
Kantianism is an explicitly non-consequentialist ethic. Kant believed that the consequences of our actions are often determined by contextual factors beyond the control of the individual. Honour and blame are only coherent concepts where the subject is responsible for what they have done. In all appeals to consequences, the locus of responsibility must necessarily be displaced to a broad array of factors, only one part of which is the agency of the individual in question. Moral responsibility for consequence, therefore, is incoherent. 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.
In the Groundwork for the Metaphysics of Morals, Kant argued that one ought to “act only according to that maxim whereby one can, at the same time, will that it should become a universal law.” In other words, our own conduct is only ever just if we can in all conscience will that every other person acted the same way. In the same work, he also professed that one should “Treat humanity, never merely as a means to an end, but always at the same time as an end.” Similarly, our conduct is only just if, in acting, we do not use any other person as a tool to achieve our own objectives. In common way, our moral duty is to only act where our actions satisfy the two tests outlined - universalizability and the ends/means requirement.
Laski’s Theory of Rights: Harold Laski, 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 calls rights as conditions of social life. Rights are social concept and deeply linked with social life. The essentiality of rights is established by the fact that individuals claim them for the development of their best self. He places rights, individuals and state on the same board in the sense that they cannot be separated from each other and there is no antagonism between them. Laski recommends the long-cherished view that the state has a very important role to play in the realisation and, before that, recognition of human rights. On legal theories of rights, Laski examines the legal theory of state. The central principle of the legal theory of rights is that they completely depend upon the institutions and recognition of 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 most significant part of Laski’s theory is functional aspect of rights. It emphasizes on 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 widely known theory of legal theory of rights. But today, rights are recognised and protected mainly on political considerations.
Barker’s Theory of Right: Barker’s view is not theoretically dissimilar from that of Laski. Both are liberal philosophers, but Barker has a clear bias to idealism. 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. Individual’s personality cannot develop automatically or under most adverse or antagonistic environment. Development of personality requires favourable conditions and these are to be guaranteed by the state through the enactment of law.
Barker also discusses the moral aspect of rights. He says, that law of the state helps me to secure rights. But rights are claims and the origin is the individual himself. The 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 the society. The implication of moral being is,- he releases his best efforts for the general welfare of society
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