THEORIES OF HUMAN RIGHTS

Ismael Aboui Buchanan, PhD

Assistant Professor
Department of Political Science and IR
College of Arts and Social Sciences (CASS)
Huye Campus
University of Rwanda
Email: [email protected]
Tel: 0783545891
INTRODUCTION

Human rights are one of the significant features of our political reality. It is
the moral rights of highest order.1 Human Rights are evolved out of self-respect.
It is inherent to all humans without any discrimination of race, sex, nationality,
ethnicity, language, religion and colour etc. It received new shape when human
beings began to think themselves. Each and every human beings are entitled to
these rights without any discrimination.

HISTORICAL ORIGIN

Though modern historians are manage to trace out “Magna Carta” of 1521 as
the historical beginning of human rights, but its real origin goes back to 539
B.C. when Cyrus, the great (king of ancient Persia) conquered the city of
Babylon, he freed all slaves to return home and declared people to choose their
own religion and even maintained racial equality 2. A clay tablet in the
Akkadian language with cuneiform script contains these liberties are considered
as the first human rights declaration in history. It is translated into all six
official languages of the United Nations and its provisions parallel the first four
Articles of the Universal Declaration of Human Rights. The idea of human
rights rapidly spread from Babylon to many nations especially India, Greece
and eventually Rome where the concept of ‘natural law’ arose in observation of
the fact that people tended to follow certain unwritten laws in due course of life.

The written pioneer to the modern human rights documents are the English
Bill of Rights (1689), the American Declaration of Independence (1776), the
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French Declaration of the Rights of Man and Citizen (1789), the first Ten
Amendments of the Constitution of the United States ( Bill of Rights 1791) and
the Universal Declaration of Human Rights of UN (1948).

WHAT IS HUMAN RIGHTS?

In short, it is the basic rights and freedom of all human, it include the right to
life, liberty, freedom of thought, expression and equality before the law. It is
interrelated, interdependent and indivisible. There are several theories which
are relevant to the concept of human rights such as, 1. Theory of natural rights
2.Theory of social rights 3. Theory of legal rights 4. Theory of historical rights
and 5. Theory of economic rights.

THEORY OF NATURAL RIGHTS

It states that an individual enters into society with certain basic rights and no
government can deny these rights3. The natural rights evolved out of the natural
law that peoples are the creatures of nature. They exist their lives and organize
their society on the basis of rules and principles laid down by nature. When the
idea of individualism developed in the 17th century, theory of natural law were
modified and focussed on the rights of the individuals4. It cannot be violated by
anyone or by any society because they are natural beings. Therefore we can
clearly say that today’s human rights are the child of ancient natural rights.

The most notable expression of this doctrine is found in the writings of John
Locke. John Locke argued that all individuals were gifted by nature with the
inherent rights to life, liberty and property of their own and could not be
removed or abolished by state. Two things are evident from his view of natural
rights, one is the individual is an autonomous being capable of exercising
choice and the second is the legitimacy of government depends not only upon
the will of the people, but also upon the government’s willingness and ability to

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protect those individual natural rights. Accordingly, human beings are rational
and good by nature and they carried the same rights they had enjoyed in earlier
stages of society into political society and important among them are freedom of
worship, the right to a voice of their own government and the right of property.

Jean Jacques Rousseau attempts to settle the natural rights of the individual
with the need for social unity and cooperation through the idea of the social
contract. Rousseau declared that natural law conferred inalienable sovereignty
on the citizens of the state as a whole. The most significant details of idea of
natural rights came from the writings of Thomas Jefferson, Samuel Adams and
Thomas Paine made the natural rights theory a powerful justification for
revolution. Positivists strongly oppose these theory because they gave
importance to society not for individual rights.

THEORY OF SOCIAL RIGHTS

The theory of Social rights states that rights are the conditions of society. It is
the creation of society, law, customs, traditions and yield to what is socially
useful or socially desirable5. What is socially useful should have for its test the
greatest happiness of the greatest number. The real advocators of this theory
was Bentham and Mill. They established the principle of greatest happiness of
the greatest number and made it for the measure of utility. But utility should be
determined by considerations of reason and experience according to them.

Laski accepts utility as the basis of rights. He agreed that the test of right is
utility and the utility of a right is its value to all the members of the State. Rights
are not independent of society, but inherent in it. One’s rights are built upon
one’s contribution to the well-being of society. Rights are built upon their
utility to the individual and the community. Utility is the measuring rod of a
particular right. The theory has its appeal in the sense of justice and reason.

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 THEORY OF LEGAL RIGHTS

According to this theory rights are created and maintained by the state 6. The
state is the only source of right and outside the state an individual has no rights
at all and never claim rights against state. The theory further maintains that
rights are not natural to man. The political pluralists object this theory, because
the state does not create rights but it only recognizes them. One of the main
exponents of this theory was Austin.

There are lot of criticism about this theory because it does not provide an
adequate basis of right. It might tell us the character of a particular state but it
does not tell us what rights need recognition. This theory will lead to despotic
state and tyranny of laws. It does not provide a basis to know what right ought
to be ensured. Rights are in fact not what the state grants what the man needs
for his self-development and what the state should grant.

THEORY OF HISTORICAL RIGHTS

According to this theory, rights are the product of history and originate in its
customs7 which passed from one generation to another. It gives emphasis to
custom. They are considered fundamental to the growth and development of
man, because they are maintained by a long unbroken custom and the
generations have habitually followed them.

The scholar Burke maintains that the French Revolution was based on the
abstract rights of man, whereas the Glorious Revolution of England was based
on the customary rights of the people of that country. There is much truth in
what Burke says because the French Revolution itself was the result of the
prevailed conditions of that country, but its slogan was liberty, equality and
fraternity8. These three abstract principles were universally applied.

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 On the other hand, the Glorious Revolution was simply a reaffirmation of the
historic liberties of English, had their heritage since the days of the Anglo-
Saxons. It found due expression in Magna Carta, Petition of Rights and various
other documents of constitutional importance.

It is to note that many of our rights are really originated in our primitive
customs. At the same time it does not mean the origin of all rights can be traced
to customs and traditions. When rights are rigidly tied to customs alone, we
entirely ignore the dynamic nature of society and the changing capacities of
rights. Rights change with the facts of time and place.

THEORY OF ECONOMIC RIGHTS

It finds its inspiration in the teaching of Karl Marx. It rejects the concept of
natural and other rights, stated from time to time as an explanation of the nature
of rights.

Marx’s idea is simple and even convincing too to certain extent. According
to him the State is powerful agency to uphold the particular type of social
organisation and law is a tool of the State that preserves and safeguards the
interests of the dominant group in the society 9. He explained that political,
social, religious and other institutions are determined by economic components,
which is essentially the mode of production. To each stage of production in the
development of society corresponds as appropriate political form and an
appropriate class structure. Every system of production leads to the rise of two
opposite classes -- the exploiters and the exploited.

Laski agrees with Marx’s idea and maintains that the way the economic
power is distributed at any given time and place will shape the character of legal
duties which are imposed on that time and place. The economically powerful

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group in society dominates, controls and regulates the machinery of the
government and occupies all the key positions of power.

The laws are so made and the policies of the governing class are so devised
and formulated that they protect the interests of this group alone. Consequently,
the dogmas of equality before the law and other fundamental rights of the
people are only a cloak of inequality, i.e. slavery. Rights are, as such, neither
the product of human nature nor their origin can be traced to the ancient
customs, or in their inherent utility, nor are rights the result of external
conditions essential to man’s internal and real development.

The economic structure of society at a given period of time is the foundation

on which the political system of a country is built. In a capitalist society, the
aim and nature of rights are to promote and foster the interests and privileges of
the dominant economic group that owns productive forces. For the masses
rights are the instruments of their enslavement.

Karl Marx finally believes that rights can exist and flourish only in a
classless society where all are equal and no one is to be an exploiter. He ignored
all talk of rights in the capitalist society and regarded fundamental rights the
pillars of democracy and the fetish of bourgeois jurisprudence.

CONCLUSION

The description of theories of rights express the fact that rights are originated
inherently in human beings. However, it is helpful to the development of the
human beings. Rights are the properties of human beings. It is necessary and
useful for the social development. Human life is upgraded through these rights.
Human rights are not just a product of morality but protect the basic freedom
and well-being necessary for human agency. Human rights represent a social

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choice of a particular moral vision of human potentiality, which rests on a
particular substantive account of the minimum requirements of a life of dignity 10

The distinctive focus of each theory results in significant variations in their

lists of specific human rights or the kind of activities humans may indulge in.
Human rights based on subsistence would not include the range of democratic
rights that most liberals argue that an essential element of human rights based
on dignity.

Notes and References

1. Jack. Donnelly, Universal Human Right in Theory and Practice ,London, Cornel
University Press, London, p. 12
2. E source L. Strauss, Natural Right and History (1957)
3. Llewellyn-Jones, Lloyd (2009). "The First Persian Empire 550–330BC". In Harrison,
Thomas. The Great Empires of the Ancient World. Getty Publications. p. 104
4. R. Tuck, Natural Rights Theories (1982)
5. e source (www.share your essays.com) by Rehaan Bansal.
6. Ibid. by Rehaan Bansal
7. Ibid. by Rehaan Bansal
8. Burke, Edmund. Reflections on the Revolution in France. Ed. Conor Cruise O'Brien.
New York: Penguin Books, 1986
9. e source(www.share your essays.com) by Rehaan Bansal
10. Jack Donnelly. Op. cit. 1989, p.17.
Books
1. J. Dharmaraj, Human Rights (in Tamil), Tency Publication, Sivakasi, 2008.
2. Thomas Paine, The Rights of Man, New York: Penguin Books, 1985
3. Amartya Sen Elements of a Theory of Human Rights Philosophy and Public Affairs,
Research Library Core, 2004.
4. Donnelli D., Haward R., “Human rights in modern world, USA., 1991
5. Jack Donnelly Universal Human Rights in Theory and Practice, Cornell University Press,
2003
6. Forsythe, Frederick P. Encyclopaedia of Human Rights, Oxford University Press,
New York, 2009.
7. Nickel, James, ed. "Human Rights". The Stanford Encyclopaedia of Philosophy 2010