Why “Rights”? — claim, entitlement, the modern turn

Rights are claims or entitlements necessary for a dignified human life. They settle what a person may do, what others must not interfere with, and what the state or society must protect.

Working definition

A right is a justified claim recognised by society or law. It gives the individual a protected sphere of action and lays duties on others.

• Older societies ran on charity, concessions and status-based privilege; modern politics moved from charity to entitlement. The French Revolution demanded the “rights of man.”
• Rights are not static — they grow with social, political and technological change; new conditions create new rights: right to work, right to strike, right to privacy.
• A right is not a selfish claim. It is a disinterested desire capable of fulfilling a universal obligation; it needs social recognition — no right exists in a vacuum.
• Rights sit inside liberal discourse, yet carry an anti-statist edge: they limit arbitrary state power. They shape the distribution of freedom and authority, and may be moral, legal, political, social, economic, cultural or human.

Marxist caveat

• For Karl Marx, rights are a bourgeois concept; the interest of man is not in conflict with the interest of society — which is why socialist states do not overemphasise rights.
• Core objection: rights may protect formal equality while hiding real inequality.

Rights and Duties — the correlative bond

Rights and duties are co-relative. Every right carries a corresponding obligation; it is only in the context of duties that rights become meaningful.

“No right can exist without a corresponding duty.”

Sir John Salmond

“Real rights are a result of the performance of duty.”

Mahatma Gandhi

• John Locke: reason “obliges everyone … that no one ought to harm another in his life, health, liberty, or possessions.”
• Key maxim: rights are enforced because they are rights; they are not rights because they are enforced.
• Rights without responsibilities weaken social cohesion; duties prevent liberty from becoming arbitrary self-assertion.

Indian constitutional link

• Fundamental Rights are accompanied by Fundamental Duties (Article 51A) — the bond matters in environmental governance, digital speech, public order and social harmony.
• In Charu Khurana v. Union of India (2015), duties were treated as “inseparable facets” of the constitutional order.

Hohfeld’s Incidents — a right is a bundle

Wesley Hohfeld showed that “a right” is rarely one simple thing. A familiar right usually combines claim, liberty, power and immunity at once.

Hohfeld’s four incidents of a right

• Claim — another bears a matching duty
• Privilege / Liberty — the holder is under no duty
• Power — holder can alter legal relations, rights or duties
• Immunity — others lack the power to alter one’s legal position

Theories of Rights — the six accounts

Six theories answer one question — where do rights come from? — differently. Hold them as a set; UPSC tests the contrasts.

Natural Rights Theory — the earliest account

Rights belong to man by nature. They are inherent, universal and pre-social — “self-evident truths” that do not depend on the state and can be asserted anywhere, because they arise from human nature or natural law. Closely tied to individualism and anti-statist politics.

Where it shaped history

• Fuelled the American and French revolutions. The American Declaration of Independence (1776) holds that “all men are created equal,” endowed by their Creator with inalienable rights — life, liberty and the pursuit of happiness.
• The French Declaration of the Rights of Man and Citizen stressed liberty, equality, security and property. The theory later became the seed of human rights.

Social-contract tradition

• Thomas Hobbes: a natural right of self-preservation in a state of nature that is a “war of all against all”; individuals accept an absolute sovereign to secure peace.
• John Locke: the most influential statement, in the Second Treatise of Government — life, liberty and property are natural rights; the state exists to protect them, not destroy them.
• Jean-Jacques Rousseau: links rights with freedom and equality. Herbert Spencer: a fundamental right to equal freedom — each free to do as he desires, provided he does not infringe the equal freedom of others.

Teleological tradition

• Thomas Paine: man is distinct from animals and should possess the rights needed to live as a human being. T. H. Green: rights tied to moral development and self-realisation.

Criticism

• No agreed definition or list; slavery was once defended as “natural,” property and gender equality endlessly contested in natural-rights language.
• Rights can conflict (liberty vs equality). Deepest problem: the theory assumes rights exist independent of society, yet rights are enjoyed as members of society — if rights and obligations are two sides of one coin, how can rights be pre-social?
• Sharpest critics: Jeremy Bentham (“nonsense upon stilts”) and Edmund Burke (abstract rights rejected for inherited, customary rights).

Legal Theory of Rights — the positivist answer

Rights are creations of the state, given by law. They are not natural or inherent; a right becomes meaningful only when recognised and enforced by law. Roots in Thomas Hobbes; sharpest critique of natural rights from Jeremy Bentham.

Natural law vs the law of the land

If natural law agrees with the law of the land, it is superfluous; if it disagrees, it is futile — either way, legal theorists say it can be ignored.

“Rights are…the fruits of the law, and of the law alone; there are no rights anterior to the law.”

Jeremy Bentham

A natural right is “self-contradictory nonsense…like ‘cold heat’ or ‘resplendent darkness’.”

H. L. A. Hart

• Bentham: rights are created by law, not discovered in nature; legislation must maximise aggregate happiness through “moral arithmetic.” Abstract, inviolable rights disturb that calculus.
• He damned the French Declaration as “terrorist language…from which may start a thousand daggers,” and called pre-legal rights mere “bawling upon paper” — fearing they encourage disobedience, resistance and revolution.

Criticism of legal theory

• The state recognises rights; it does not create them. Every right — and even law itself — has a moral basis; the sole-source view makes the state absolute.
• Herbert Spencer: the state recognises, maintains and protects rights that exist by themselves, legalised or not; sovereignty is limited in practice by custom, tradition and morality.
• Joseph Raz (The Authority of Law): law is autonomous — its content can be identified without direct recourse to morality; this strengthens legal autonomy but does not close the debate over the moral basis of rights.

UPSC 2009 — Explain why Jeremy Bentham dismisses the theory of natural rights as ‘nonsense upon stilts.’

Historical / Conservative Theory — rights as crystallised custom

• History makes rights; rights are the crystallisation of custom, itself a kind of primitive law. Long-standing customs gradually harden into rights.
• David George Ritchie: the rights people think they ought to have are really the rights they have become accustomed to having; natural rights are those with the sanction of the longest, least-broken custom.
• Edmund Burke: the French Revolution rested on the abstract rights of man, the English on the customary rights of the Englishman; he favoured inherited rights, social continuity and gradual reform.

Criticism

• Many rights are rooted in custom, but not all rights reduce to it; custom can justify slavery, and tying rights to existing custom makes reform impossible — custom preserves order, but also oppression.

Social Welfare (Expediency) Theory

• Rights are conditioned by social welfare: a right is justified when it promotes public welfare. Utilitarian in spirit — e.g. free speech is protected because it makes expression and communication possible.
• Opposes blind reliance on custom, external authority and abstract natural rights.

Criticism

• Public welfare is a useful test, but it should not rest only on the greatest happiness of the greatest number — that may sacrifice minorities.
• “Greatest happiness” cannot be measured (a community has no feelings); welfare may override individual rights and slide into “the ends justify the means.”

Moral Theory of Rights

• Moral rights arise from human reason and the sense of right and wrong, resting on accepted morals; supporters believe in the convergence of law and morality. Customs differ, but many moral rights recur across modern societies.
• Immanuel Kant: morality is bound to political and legal life; reason is the mark of human agency; human beings must be treated as ends, not merely as means.
• T. H. Green: rights do not simply come from law — they arise from the moral character of human beings; recognition flows from the moral consciousness of the community, not state force, and is tied to the development of moral personality.

Harold J. Laski — a social-moral reading

“Every state is known by the right it maintains.”

Harold J. Laski

• Rights are the necessary conditions without which no man can seek to be at his best — needed for the full development of personality, never to be read in atomistic individualist terms.
• Liberal and socialist at once: rejects the atomistic conception of classical liberals; close to J. S. Mill on intellectual liberty; with T. H. Green in rejecting merely negative liberty; rejects capitalism as a system of discriminatory privilege, holding that rights are fully realised only under socialism.
• Against fascism: called fascist leaders “executioners” and fascist governments “gangster governments” that wring obedience from unwilling people and respect no rights.
• Reform is permanent: no political or economic system is the final embodiment of truth; liberty is the affirmation of inviolable rights shared by all. Laski rejects natural rights for an evolutionary view.

“Rights cannot be static, as civilization itself is not static.”

Harold J. Laski

• Rights are social conditions for self-realisation, with their source in the moral realm; they preserve our uniqueness against social pressure — yet we hold them as members of society, never empty of duties, and uniqueness counts only as it contributes to the whole.

Ronald Dworkin — Rights as Trumps

Ronald Dworkin set out the doctrine in Taking Rights Seriously (1977): certain moral rights act as limits on governmental power. Some rights are so fundamental that they cannot be overridden by collective interest — they operate as “trumps” against ordinary utilitarian calculation.

“Individual rights are political trumps held by individuals.”

Ronald Dworkin

Main features

• Moral rights against government: citizens hold moral rights the government must respect — not merely constitutional, but expressions of deeper principle (free speech, fair trial, equality).
• Fundamental rights as trumps: some rights are too important to infringe even for overall social benefit; they protect dignity, autonomy and self-respect, blocking the sacrifice of the individual to collective welfare.
• Priority of the right over the good: Dworkin rejects greatest-happiness utilitarianism; rights are non-negotiable in ordinary political calculation.

“The rights secured by justice are not subject to the calculus of social interests.”

John Rawls

Characteristics & the limits

• Non-weighable (no trade-offs), unconditional (firm even when violation brings gains), inviolable. Strong sense → claim-rights; weak sense → liberties or privileges.
• Exceptions Dworkin allows: the original right may not really be at stake; the cost to society may be disproportionately high; one right may conflict with dignity or another right.

No right is an “ace”

Jamal Greene: “because the rights-as-trumps frame cannot accommodate conflicts of rights, it forces us to deny that our opponents have them.” Joao Costa Neto holds trumping and balancing may be complementary; Alan Gewirth allows one absolute right — not to be made the victim of a homicidal project.

On reverse discrimination, Dworkin is supportive: such programmes do not violate rights if they help build a more equal society.