Fundamental Principles of Rights, Law and Democracy

CHAPTER 1: INTRODUCTION

Rights and duties are correlative conceptions, that is to say, every right carries with it a corresponding obligation. They are like the two sides of a coin. Rights depend upon duties. “It is only in a world of duties that rights have significance”.

Also, every right requires social recognition, without such recognition, rights are empty claims. Rights do not exist in a vacuum. They require the sanction of society. A right is likewise not a selfish claim. It is a disinterested desire; it is something which is capable of universal application. In asserting my right, I am really rendering a public service and when I fight for the rights of others, I may do so at great personal loss or inconvenience to myself.

Older societies as a rule did not recognize rights to any great extent. They had only petitions and charities. Modern societies on the other hand give a very important place to rights. The French Revolution did not ask for charity; it demanded the rights of men. Some, if not all, of our present day constitution’s guarantee certain fundamental rights for their citizens. Rights have a tendency to grow. New rights frequently come into being, e.g. the right to work, the right to strike, and the right to retain one’s job when one is on strike etc.

1.2 THEORIES OF RIGHTS

Among the various explanations of rights which have been offered from time to time, we can distinguish five main theories; these are.

a) The theory of natural rights;
b) The legal theory of rights;
c) The historical theory of rights on the theory which base rights on customs;
d) The social welfare or the social expectancy theory of rights; and
e) The idealistic or personality theory of rights.

1. The theory of natural rights

This is the earliest theory of rights. It goes back to the Greek times. It holds that rights belong to man by nature. They were in him. They are self-evident truths. One simply asserts them dogmatically. Rights are absolute. They are pre-civil and according to some, even pre-social. They are inborn. They can be asserted anywhere and everywhere. Thus, Locke says all men are born free and rational. God has given authority to no man to compel another to carry out his orders. Likewise, the right of life, the right to liberty, the right to judgment, the right to carry out one’s judgment etc. are all natural rights.

This theory of rights has played a very important part in the history of human development. In practical politics, it extended great influence on the constitutional struggles of America and France. For instance, the Virginian constitution declares; that all men are by nature equally free and independent, and have certain inherent rights of which when they enter into a state of society, they cannot by any compact deprive or divest their posterity, namely; the enjoyment of life and liberty, with the means of acquiring and possessing property and pursuing, and obtaining happiness and safety (66:5). The American declaration of independence in 1776 holds these truths to be self-evident that all men are created equal, that they are endowed by their creator with certain inalienable rights that among these are life, liberty and pursuit of happiness.

The social contract writers in general are advocates of the theory under consideration. They assume that man had certain natural rights to start with, and that at the time the contract was formed, he surrendered some of those rights to a superior authority in order to be able to safeguard the rest. Herbert Spencer asserts that the one fundamental right of all men is the right to equal freedom according to which, every man is free to do that which he wills, provided he infringes not the equal freedom of others.

Criticisms

a) It is difficult, if not impossible, to define the term’’ natural’’ in terms of the following arguments:

- Nature = the whole universe;
- Nature= the ideal or completed purpose;
- Nature= the non-human part of the universe;
- Nature= the original( the incomplete);
- Nature= the normal or average.

At this point, we naturally ask,’’ In which of these various senses are we to understand the term nature’’ in making of natural rights?

b) There is an ambiguity as to what these rights are. There is no official or complete or generally accepted agreed upon list of natural rights; others condemn it as being unnatural and artificial. Some assert that by nature men and women are equal; others deny it. Some hold that men are naturally good; others believe that by nature they are wicked. Some regard private property a natural right, others deny it altogether.

c) The so called natural rights conflict with one another. The French Revolution declared liberty, equality, and fraternity to be the absolute rights of man. They are supposed to be self-evident truths. But, when we begin to apply them to apply them in practice, we are faced with endless difficulties. In no rational system can there be a place for absolute liberty and absolute equality. If we begin society with absolute liberty, we soon get inequality. On the other hand, if we start with absolute equality, liberty soon vanishes.

If property belongs to all as assumed by supporters of that theory of natural rights we must know what right implies. Does it mean private property, if it does, does it include the right to dispose of one’s property as one wills; the right to do exactly what one wills with one’s own, even to the extent of abusing it?.

d) The implication of the theory of natural rights is that the state and social institutions in general are artificial and that they have robbed men of certain inherent rights which belong to him in a state of nature. The logical conclusion to which the theory of natural rights leads is extreme individualism. It is capable of being used both by the anarchists and conservatives.

e) The real flaw in the theory is that it assumes that we can have rights and obligations independently of society. This is an enormous conception. We have rights only as members of society. A part from society, we may have powers but not rights. Rights antecedent to society are meaningless, for the single reason that a right is nothing without a correlative obligation.

2. The legal theory of rights

According to this theory, rights are the creations of the state. What the law gives me is my right, and what the law does not give me is not my right. Rights are not absolute. They are not inherent in man at all. They are relative to the law of the land. My right to life, liberty, property etc. is determined by the state. Rights are artificial.

Its advocates argue that the so called natural laws either agree with the laws of the land or disagree with them. If they agree, they are superfluous and if they disagree, they are futile. Therefore, in either case, they can be ignored.

Hobbes holds that fundamental rights of every individual is that of self-preservation. This right, Hobbes believes, can be maintained by the state than by the individual.

Criticism

a) That the state does not create rights; it exist in order to maintain rights. Wilde remarks; “the law does not create our rights, but only recognizes them and protects them.” The rights themselves exist whether they are legalized or not. They are enforced because they are rights, and are not rights because they are enforced.

To say that the state is the sole creator of rights; is to make it absolute. However, high a place we may be prepared to give the state, we are not prepared to go as far as that. Technically, the sovereignty of the state is supreme. But, there are certain practical limitations imposed upon it by customs, traditions, history and morality. Law is often determined by the customary rule of the community. Justice in very many cases follow customs derived from law is unsound.

b) That the state is only creator of legal rights. But when they say this they are not saying anything profound. They are guilty of tautology. The defect with the legal theory is that it does not cover the whole scope of the rights. Whether rights are derived from history, customs or laws, they all require a moral basis. The legal theory does not enable us to decide whether the rights that are recognized are the rights that might be recognized.

Truth in the theory

a) Claims which are essential to the moral development of man, and which are violated or ignored by the state can at best be only potential rights. They are the raw material on ground of rights, but are not full-fledged rights. It is desirable in that in democratic countries, at least when presumably the general will of the people can bring about necessary changes in a peaceable manner, all our rights should win legal recognition. But this is not the same as saying that whatever has legal behind is necessarily a right. It may only be a technical right.

b) A right should have both a legal and moral aspect. Bosanquet asserts; “a right has both a legal and moral reference. It is a claim which can be enforced at law, which no moral imperative can be; but it is also recognized to be a 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.

3. The Historical theory of rights

This theory can be summed up in the sentence “history makes rights.” It holds that rights are the capitalization of customs. E.g. if a person has been receiving a birth day present from a friend for a number of years, he/she soon comes to imagine it as a right. What is a pure gratuity becomes a custom and one expects it as a matter of course.

Edmund Burke has observed that the French Revolution was based on the absolute rights of man, while the English Revolution was based on the customary rights of Englishmen.

Criticism

No doubt a large number of our rights are rooted in customs. But to say that all our rights can be traced back to ancient customs is a clear exaggeration

4. The social welfare or the social expediency theory of rights

From this point of view, rights are conditions of social welfare. They are creations of society. Associates of this hold that law; customs, natural rights, etc. should all yield to what is socially useful or socially desirable.Rights are argued being determined by a balance of interests. The right of speech, for instance is not unlimited. It is determined by consideration of social expediency.

Utilitarian’s support this theory, based on the principle of “the greatest happiness of the greatest number” as a criticism by which to judge of what ought to be. They believe that utility can be determined by means of reason and experience.

Criticism

a) Public welfare is undoubtedly a good test of rights. But difficulty arises when we begin to define the term “public welfare.” Does it mean the greatest happiness of the greatest number? Majority interests, public opinion on what the government of the day considers to be the common good? Even if it means any of these, it does not help us much, because these terms are equally vague and indefinite, “greatest happiness as such cannot be measured. The community as such has no feeling.

b) Social welfare may infringe on what we call our individual rights. It may lead to the position that is right to do a little injury to an individual in order to do a great deal of good to the community to the doctrine that the end justifies the means. It may mean in practice general welfare overruling what is admitted to be a private right. The principle of social expediency is a dangerous principle with which to work.

However, in a good many cases individual rights coincide with general welfare. Trouble arises only when the two conflict. When such conflict arises, advocates of the social welfare theory are bound to prefer common interest to individual good.

5. The idealistic or personality theory of rights.

From this point of view of this theory, rights may be defined as the outer conditions, essential to man’s inner development. The supreme right of every man is the right to personality. It is the right and duty if every human being freely to develop his full potentiality. Every other right is derived from this one fundamental right. Everyone has the right to life; the rights to liberty, the right to property etc. are not absolute rights. They are conditions on presumptive. They are relative to the right of personality. Green speaks of rights as powers, “necessary to the fulfillment of man’s vocation as a moral being.”

This theory looks at rights from a highly moral point of view. Rights are powers which I can claim from society on a moral plane. They are rooted in the mind or soul of man. They are powers granted to me by society in order that I may with others realize a common good of which may be good is an intrinsic part.

Hence, we may say that every right has for its basis a rational or responsible wish. Whimsical or irresponsible wishes can never become rights.

Criticism and appreciations

a) On the whole, the idealistic personality theory of rights seems to be the most satisfactory, difficulties may arise when we begin to reduce the conception of personality to practical terms. It may be asked: by what standards is the state to judge the conditions required by each of its citizens for his fullest self-development? Is not the idea of personality after all subjective idea? What do we know of other people’s destinies? These are weighty objections.

b) It is conceivable that to a very large extent the social welfare theory and the idealistic theory in their relation to rights will go hand in hand because individual good and social good come into conflict, the idealistic theory will go one way and the social welfare theory another.

The idealistic theory requires sacrificing any human being to the development of someone else. It believes that no man is to be treated as simply a means to another’s end. It calls upon everybody to treat humanity in his own person and in

Person of others always as an end and never merely as a means.

c) The merit of the theory is that it lays down one absolute right, viz, the right of personality and derives every other right from it. Because there is only one absolute right, there is no inner contradiction as in the case of the theory of natural rights. Besides, this theory furnishes a safe test of right which can be applied at all times, and herein it is superior to the legal, historical, and social welfare theories. Then one absolute right of all human beings is the right of personality. It is invariable.

CHAPTER 2 PARTICULAR RIGHTS

2.1 Right of life

The particular rights which we take up for detailed consideration are the rights to life, liberty, property, and equality, political rights and the right of persistence to the state.

The most fundamentals of all rights are the right to life, for without it man can have no other right. According to Green, the right to life and the right to liberty together constitute a single right, viz, the right to a free life. Life without liberty is useless and conversely, it is the use made of life that gives one the right to life.

The basis of the right to free life is the instinct of self-preservation natural to man and the instinctive aversion of the average person to take the life of any sentimental being. Before any right is conceded, society must be convinced that it is necessary for the individual’s self-development as well as valuable to itself. Again, if rights rest merely on instincts and emotion, how are we to explain the readiness with which people kill their own fellowmen in warfare murder? The right to life, therefore, is not unconditional, only to the extent to which it is used in the interest of one’s self development and in the interest of society can it be fortified.

2.2. Implication of the right to life

1The duty to live.

The right to life implies the duty to live. Neither from the point of view of himself nor from that of society is an individual justified in taking his life. Hence, it is that attempt at suicide is punishable in all states. Suicide stands condemned from the side of society also. Every life is valuable from the point of view of general welfare. Therefore, to take one’s life or that of another is to eliminate an individuality which has rights as well as duties.

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