Rights :

Rights of man is a concept of Modern Times. In ancient times,

there was a concept of duties but not rights. In mediaeval times,
the theory of divine rights of the king was prevalent. Rights
belong to the liberal discourse. Rights are considered as claims of
persons. According to Dworkin, rights are trumps means rights
are claims which will have priority over all other claims. Person
enjoy right when other perform duties.
According to Dworkin, there are two views of rights –
• Strong view of rights – legal
• Weak view of rights – moral
Rights can be interpreted in two ways –
▪ Entitlement or claim – it is a strong view of right. According
to this, rights are the claims of person on the society and
state. There is no relation between rights and duties.
According to John Locke and Nozick, there are certain rights
which are absolute. Enjoyment of rights does not depend on
performance of Duty.
▪ Moral basis of rights – morality is a source of right. Since
man is a member of society, man is dependent on society.
Hence, man has certain obligations towards the society.
According to T H Green, origin of rights is in the social
consciousness, which depends upon the community's sense
of right or wrong.
Karel Vasak explain the evolution of rights in the form of three
generations –
 1. First generation - Civil and political rights – based on liberal
discourse
2. Second generation – social and economic rights – based on
socialistic discourse
3. 3rd Generation – cultural and developmental rights – it
includes right to development, disarmament and Right Of
Cultural groups specifically minorities.
Theories of rights –
Theory of natural rights – it is an oldest theory of rights.
According to the theory of natural rights, rights are given to man
by nature. Man is born with the rights. They are integral part of
the personality of the man. Theory of natural right limit the scope
of states action.
One of the earliest exponent of theory of natural
justice is John Locke. We can also mention the name of Thomas
Paine. According to the theory of natural rights, intuition or
reason rather than institution is a source of light. State is not the
source of right, it is just protector of right. It is also the strongest
theory of rights. It is also the basis of Human Rights.
In theory of natural rights, there are two traditions –
1. Tradition of social contract – John Locke believed that man
can enjoy rights in the state of nature. Man has not
transferred all of his rights to the state. If state tries to take
away the rights of man then man can revolt against the state.
2. Teleological rights – Thomas Paine – he does not believe in
the theory of social contract. We should not limit the choices
of future generation. Teleological tradition is associated with
 the purpose. The purpose of rights is the development of
man.
Criticism of natural rights –
Theory of legal rights – Utilitarian theory – Bentham
Theory of legal rights has been the dominant theory till World
War 1. After World War II, with the acceptance of concept of
Human Rights, there is a revival of the theory of natural rights.
According to Bentham, rights are properly the creations of law.
According to him, natural rights are nonsense and nonsense have
no stilts (support). Strength in natural rights is a metaphor.
Bentham believes that state has provided the right to the man. He
supports the view that state is a source of right. According to him,
natural rights is a terrorist language and natural rights result into
anarchy.
Bentham supports hobbesian tradition. According to
Hobbes, man cannot enjoy rights in the state of nature. State of
nature is a state of War. In the state of nature, might is right. Only
when state comes into existence, man can enjoy rights. Hence, the
real source of rights is state. Man has Liberty only where law is
silent.
Similarly, Bentham in his book ‘Anarchical Fallacies' criticized
the theory of natural rights. Bentham suggests that natural rights
are nonsense. in the words of Bentham natural rights are nonsense
up on stilts. According to Bentham, natural rights are nonsense
because some preconditions are required for observing natural
rights. Asserting rights against the state will result into chaos in
the society. For Bentham, the real source of rights is state. Rights
against a state, right against the wishes of state carry no meaning.

Conservative theory – Edmund Burke

According to him, natural rights are metaphysical abstractions. It
means there is no existence of natural rights. According to
conservatives, the source of light is customs and traditions rather
than reasons of man. It is not possible to enjoy rights which are
not as per the cultural values of the society.
Neither natural law nor positive law is a source of right. It is
common law which is the source of right. According to
conservatives, the real source of rights is society’s customs and
traditions. No one can enjoy rights until and unless they are not
according to the customs and traditions.
The collective wisdom of Ages cannot be challenged on
the basis of region of a single person. In contemporary times, this
theories of rights has influenced the emergence of
communitarian, multiculturalism and cultural relatives
perspectives on human right.
Moral theory of rights / teleological theory - Immanuel Kant and
T.H.Green
According to T.H. Green, the origin of rights is in the sense of
right and wrong. according to him, human consciousness
postulates liberty, Liberty involves rights.
Functional theory of rights – laski
According to him, rights and duties are interdependent.

Types of rights –
1. Civil political rights
2. Social and economic rights – right to education, food and
dpsp.
3. Human rights

What are human rights?

Human rights are those rights which are available to human
beings, just because of Being Human. Human Rights have
become new religion, the religion of humanity. It is considered as
one of the most Revolutionary ideas of our Times.
Human rights are considered as those rights which all humans
should possess irrespective of their caste, color, race, Creed and
nationality. Human Rights should be possessed equally by all
humans. If we take out the dimension of equality, we destroy the
idea of Human Rights. It means we are treating someone as less
than humans. Human rights have five fundamental features –
• Equality
• Universality
• Inalienability
• Permanence
 • Individuality
History of Human Rights – the idea of Human Rights emerged
after the experience of Hitler’s atrocities on Jews. It was realised
that we need to dilute the concept of sovereignty of state, in case
States takes away the rights it becomes responsibility of
international community to protect human rights. It has led to the
Universal Declaration of Human Rights on 10th December 1948.
Human Rights Regime faced opposition
from Communist countries. Communist countries believe that
human rights is a western propaganda for intervention in domestic
affairs of the country. The set of rights included in Universal
Declaration of Human Rights are based on experiences of Hitler’s
action. Set of rights given in UDHR( Universal Declaration of
Human Rights) are also based on philosophy of liberalism.
Liberalism gets associated with westernization. Hence, some
leaders of the developing world called it as cultural imperialism.
They called for Asian values. They held that Western values are
not suitable for non Western societies.
At present, UDHR and 2 covenants –
1. Covenants on civil political rights 1966
2. Covenants on social and educational rights 1966
These three documents together are known as International bill of
rights. Besides above documents, there are many conventions and
resolutions on the rights of minorities, refugees, women and
children also comes under the growing International regime of
human rights.
National governments have the major responsibility
for ensuring Human Rights in their domestic sphere. There are
many UN bodies, the prominent being United Nation human
rights council act as a Watchdog body. As a result of UN efforts
States have established National Human Rights commissions.
International Criminal Court established under Rome
statute is also the essential component of global Human Rights
regime. According to Amartya Sen, the concept of Human Rights
is ambiguous concept, human rights are just moral guarantees.
Human Rights regime suffer from many challenges, conceptual
as well as institutional challenges.

Conceptual challenges – international community has agreement

only on necessity of the protection of human rights but beyond
that they lack consensus. There is no consensus even on the
definition of humans. For some, all should be considered as
humans whereas for others terrorists, persons committing crimes
against humanity and genocide do not deserve to be treated as
humans.
There is also no agreement over definition of terrorists.
There is no consensus as to when human life starts, where it starts
in the womb of the mother or after birth. There is a disagreement
between those who demand right to abortion and those who are
against. There is no agreement on basic rights which can be
considered as human rights. For western countries, right to life,
liberty and property is the most fundamental right but for
countries like China these rights are bourgeoisie rights and social
and economic rights have a Priority. At present countries like
China, Iran, Russia and Malaysia look at Human Rights as
attempts for regime change.
There are problems in the concept of Human Rights as they have
to be available to humans as individuals. In many societies,
individualism is not a value. Similarly in many societies women
do not enjoy equality of status. It cannot be justified to extend
these rights to men and deny to women. Human rights have to be
available to all otherwise it will imply that we are not treating that
person as human to whom we are not giving these rights. Human
rights are based on universalism. Whether person is in Berlin or
Baghdad, he should have equal rights.
So far human rights activism has been shown by the
NGOs and the governments of the western world. Approach of
West has not been neutral. They have been selective. For
example, USA talking about human rights violation by the
government of Syria and overlooking violations by government
of Saudi Arabia and Israel.

In domestic sphere Human Rights create the problems for state.

By definition Human Rights create powers of state but states are
expected to enforce human rights. In most of the third world
countries, there is a law and order problem. Many third world
countries face successionist challenges. The use of power by the
state against insurgents becomes the basis for being accused of
Human Rights violation. About discussion shows the conceptual
and institutional problems towards the enforcement of Human
Rights regime.

Alternative perspectives – Scholars from third world countries

suggest that West should not try to impose western way of life on
other societies. The leaders in the non western world expect that
West should adopt cultural relativism and multicultural approach
towards rights. The conception of rights cannot be detached from
the culture of the society. In recent times, there is an appeal that
west should adopt multi-cultural approach. According to Bhikhu
Parekh, there is a need of dialogue between Civilization to evolve
the consensus around some basic values governing Human
Rights. According to him, human dignity can be such value.

Discuss the evolution of theories of Human Rights from

natural rights to collective and environment rights.
Human Rights is the most powerful idea of our Times. However,
Human Rights remains a contested concept. It is not only
contested but also conflictual. Human rights has become the
feature of international law after the second world war. Based on
the experiences of Germany, International community has
adopted Universal Declaration of Human Rights. The Human
Rights can be traced to two Scholars that is John Locke who gave
the theory of natural rights and Immanuel Kant who has given the
concept of human dignity.
Human Rights is defined as the sets of rights which all humans
should possess just because they are humans. Denial of Human
Rights is denial of human experience. The idea of Human Rights
is also linked to the concept of human dignity. Karel Vasak has
given the concept of three generations of rights –
• Civil political
• Social economic
• Cultural, collective and environment rights
One of the earliest theory of Human Rights is natural rights.
According to John Locke the basis of Human Rights is a reason
in man. It is the intuition rather institution which matters. Scholars
like Thomas Paine, Immanuel Kant and T.H.Green support the
argument of human dignity. In contemporary times, Jack
Donnelly support Lockean Idea and Alan Gewirth support the
argument of human dignity. Human rights are essentially based
on the ideas of liberalism. Hence, the first challenge came from
the communist block , it led to the recognition of social and
economic rights.
As a result of decolonization process many third world
countries became the members of United Nations General
Assembly. Third world countries demanded collective rights like
right to development, protection of environment from third world
countries some leaders demanded to recognise cultural diversities
and to adopt / recognise culture specific right.