- Intro: Harold J laski - rights are those conditions of life, without which no man in general can seek to be at his best - in his book grammar of politics
- Three gen of rights by karel vasak:
- First-civil and political rights: deal essentially with liberty and participation in political life. The core civil and political rights are right to life,liberty and property(John Locke). They are typically seens as negative rights as they can be enjoyed only if constraints are placed on others.
- socio-economic rights: Drew inspiration from socialist ideas and social justice. These include right to work,right to healthcare,right to education,etc. These are positive rights as they imply a significant level of state intervention.
- Cultural and developmental rights: major contribution of multi culturalists like bhikhu parekh.They are attached to socail groups or whole societies, as opposed to separate individuals. they are seen as collective/people’s rights. Ex- right to self determiation,right to peace,right to environmental protection and multicultural rights
- Natural rights:
- It is based on liberal theory of origin of the state from the social contract
- It suggests that human beings have rights prior to state. It refers to the rights enjoyed by man in the state of nature that must be protected and respected by the state
- The most influential theory of natural rights was propounded by John Locke in his “second treatise on civil government”. His theory treats individual as an end and the state as the means and postulates that men form the state for the protection of natural right to life, liberty and property
- Natural rights are self evident truths. Man is born with these. They are not dependent on state and it does not matter whether state recognises them or not.
- Natural rights are considered to be based on intuition rather than institution. It means that they originate from the reason of man rather than state. In the words of John Locke “reason in man teaches him not to harm the other in his life, liberty and property.”
- Natural rights theory has theological basis just like divine rights of king.American declaration of independence mention that that God has given all human beings right to life, liberty and pursuit of happiness.
- Two traditions within natural rights:
- Theory of social contract: Manhas these rights since he was in nature, before the formation of state. These rights are inalienable. Man has not transferred these to the state under the contract and hence state cannot limit these.
- Exponents:
Locke
2.rousseau
2.Thomas Paine : book: the rights of man. Says since man is born different from animals he must be given rights to lead a life different from animals.Paine was a critic of social contract as it provides no justification for future generations to be bound to a contract entered into by previous generations.
- Criticism of natural rights-
- By legal positivists( bentham, Hobbes)
- say source of rights is law/state.
- NR are non sensical upon stilts.
- They are abstract.
- No certainity.
- Receipe for lawlessness.
- acc to hobbes, man cannot enjoy rights in the state of nature as it is a state of anarchy. Only when state comes into existence can he enjoy rights. Hence state is the real source of rights.
- Bentham’s arguments:
- Criticises from utilitarian pers .
- Utilitarians believe Natural rights are a “terrorist language” as they limit the authority of the state and lead to chaos. His views were influenced by developments that took place in France after French revolution that took the turn of “reign of terror”
- NR are vague but the positive rights(given by state, hence called legal positivism) are codified and thus avoids chaos.
- Only state creates legal and institutional support for realisation of rights.
- NR are nothing more than ”anarchichal fallacies”
- Theorists of natural rights treat individuals as the end and the state as the means to protect the natural right to life,liberty and property. In this way, the NR theory attacks the political sanctity attached to the institution of state.
- By theory of cultural rights( Edmund burke).
- Not nature but culture is the source of rights.
- Man can't enjoy these until and unless sanctioned by society .
- Cannot challenge customs for untested ideas .
- NR Tries to be universalist ignoring socio cultural diversity. Based on abstract individualism .
- Human rights:
- Those rights to which people are entitled by virtue of being human(thomas paine;book- rights of man)’. Hence they are universal.
- It is a post WW2 concept based on atrocities of hitler against jews.
- Acc to james nickel they are a non negotiable ingredient of human identity. They are universal,fundamental and absolute
- Human rights are modern and secular version of natural rights. It is broader than natural rights as it is believed to include even the legal rights that is the rights given by state
- EUIIP-
- available to all irrespective of caste,cree,religion,race,sex,etc
- UDHR+covenant on civil and political rights 1966+ cov on social and economic rights= Intl bill of rights
- Criticism
- it suffers from ciris of legitimacy.
- Seen as justification for western countries geopolitical interests in asia and middle east and regime change .
- West has gone for selective imposition of human rights. They ignore HR violations in China,Saudi Arabia and have taken action against Iraq,Syria,etc.
- Different notion on human rights forms an essential element of clash of civilisations theory (Huntington)
- No consensus on minimum rights that would be available to all and definition of who should be given HR like should terrorists be given human rights
- Criticised by cultural relativists ( the term cultural relativists coined by Franz Boas)
- culture is an intrinsic part of a man’s personlity and concept of rights cannot be independent of culture.
- each culture is rational, no culture should be seen inferior or superior.
- Natural rights tries to be universalist ignoring socio cultural diversity.
- Xi and putin see it as attempt for regime change and install puppet regimes.
- Asian values-
- Lee kuan Yu and mahathir mohammad say HR is a sort of cultural imperialism. For them HR is based on “Atomistic man” but acc to them man is a “ situated self” and asian societies have special attachment to community and organic solidarity. This view was broadened by Arab execeptionalism scholars who argued that since “state” preceded “societies” in orient(has royal origin), its command is obligatory to citizens.
- Do not impose rights derived from western cultures on non western societies.
- Criticism of Asian values-
- Amartya sen critisises this in his “The argumentative indian” and says Asian values are a mask for ensuring totalitarian regimes in asian countires. Says asia is too heterogenous and no single set of Asian values. Putting man under the subordination of society is a form of soft authoritarianism. Giving example of Akbar’s regime (Din-i-ilahi) of pluralism, tolerance and free thinking, he says that a democratic culture has existed in the orient too.
- Lee Teng Hui (ex Taiwanese prez)-
- Conception of third generation of rights accommodate cultural relativist approach.
- This approach may play role in diluting clash of civilization. Bhiku parekh calls for dialogue between civiclizations.
- Conclusion on rights:
- Dworkin on rights:
- In his book “taking rights seriously”, he says rights are trumps means that right of individuals should be given preferences over any other considerations, including community interests or consideration of state.