Theories of Rights

Mian Ali HaiderL.L.B., L.L.M (Cum Laude)

U.K.

INTRODUCTION Modern human rights discourse has done much to advance equality, expand

liberty and curb the excesses of government. As such, rights discourse frames many public debates. To raise just one

example, far-right American conservatives insist that the state must have the right to torture terror suspects when in pursuit of high security objectives.

Liberals object that torture violates victims’ rights to bodily integrity and dignity together with the right to be presumed innocent until proven guilty.

What are the limits of rights and when can we abridge them? The answers lie in an analysis of differing theories of rights.

We shall focus on four school of thoughts likely to be familiar to most law students.

THEORIES OF RIGHTS The Natural Law School The Utilitarian School The Deliberative The Protest School The Discourse School The Fundamental Legal Conception

The Natural Law School A number of times throughout history, tyranny has

stimulated breakthrough thinking about liberty. This was certainly the case in England with the mid-

seventeenth-century era of repression, rebellion, and civil war.

There was a tremendous outpouring of political pamphlets and tracts. By far the most influential writings emerged from the pen of scholar John Locke

The Natural Law School He expressed the radical view that government is

morally obliged to serve people, namely by protecting life, liberty, and property.

He explained the principle of checks and balances to limit government power.

He favored representative government and a rule of law. He denounced tyranny.

He insisted that when government violates individual rights, people may legitimately rebel.

The Natural Law School These views were most fully developed in Locke’s

famous Second Treatise Concerning Civil Government, and they were so radical that he never dared sign his name to it.

He acknowledged authorship only in his will. Locke’s writings did much to inspire the libertarian ideals of the American Revolution.

This, in turn, set an example which inspired people throughout Europe, Latin America, and Asia.

The Natural Law School Thomas Jefferson ranked Locke, along with Locke’s

compatriot Algernon Sidney, as the most important thinkers on liberty.

Locke helped inspire Thomas Paine’s radical ideas about revolution. Locke fired up George Mason. From Locke, James Madison drew his most fundamental principles of liberty and government.

Locke’s writings were part of Benjamin Franklin’s self-education, and John Adams believed that both girls and boys should learn about Locke. The French philosopher Voltaire called Locke “the man of the greatest wisdom. What he has not seen clearly, I despair of ever seeing.

The Natural Law School Jack Donnelly is labelled as a natural law

theoretician, but he does not give a comprehensive moral foundation to human rights. He thinks that it is an impossible, or even meaningless task.

“I therefore suggest that the attempt to provide a direct philosophical justification of any particular list of human rights is not likely to be of great interest – except perhaps to those who already accept it – or value” (Donnelly, 1989: 22).

The Natural Law School He separates human rights qua moral rights from the legal laws, claiming

that a purely legal understanding of human rights is too narrow. Human rights as moral norms are higher than positive laws. When all else is done or has been tried, one claims human rights. Human rights are fundamentally moral, according to Donnelly. He also argues however that they should be implemented in national

laws. Human rights entail strong claims to achieve change and

improvements, and they achieve change more efficiently when they are codified as laws.

Human rights are practical at one level, but they are also the highest moral principles which we can invoke

The Natural Law School Donnelly refers to “human nature”, but although he sees human

rights as derived from this nature, he is unwilling to present a theory about human nature.

Human nature will be integrated in social contexts, and it seems difficult or impossible to separate what is nature from what is social.

Humans are embedded in culture and being a human being is by nature to be cultural.

This makes the definition of what is nature and what is culture very complicated.

“Human nature is thus a social project as much as it is given”

The Natural Law School Because agreements on this subject are not attainable, he abstains from

any attempt to give a theory of human nature. Human rights are given a universal validity based on human dignity and

contingent human nature. When it is looked at more closely, this dignity is relative to context.

Donnelly is a universalist, but he grants culture or context a decisive role. This is a dialectic where the universal is generated by the contingent.

Human rights are results of special historical developments; the universal is the result of a concrete historical process. “All human rights are embedded in a social context”.

This also means that human rights , must be open for yet further development and change.

The Natural Law School “Our list of human rights has evolved and expanded, and will

continue to do so, in response to such factors as changing ideas of human dignity, the rise of new political forces …”

(Donnelly, 1989: 26). “The relationship between human nature, human rights, and

political society is therefore “dialectical”. Human rights shape political society, so as to shape human beings, so as to realize the possibilities of human nature, which provided the basis for these rights in the first place” (Donnelly, 1989: 19).

Critique (“Relatively Universal” , “Human Dignity”)

The Utilitarian School In the spring of 1776, in his first substantial

(though anonymous) publication, A Fragment on Government, Jeremy Bentham invoked what he described as a

‘fundamental axiom, it is the greatest happiness of the greatest number that is the measure of

right and wrong.’

The Utilitarian School For the utilitarian, the just action is that which, relative to all other

possible actions, maximises utility or “the good” (defining “the good” is the subject of philosophical conjecture and beyond our scope here).

Utilitarianism is exclusively consequentialist; the justice or injustice of an action or state of affairs is determined exclusively by the consequences it brings about.

If an action maximises utility, it is just. On this account, therefore, rights are purely instrumental.

It is also worth noting that many in the utilitarian tradition have expressed hostility to the notion of rights of any sort.

The utilitarian will honour a right if and only if it will lead to the maximisation of utility.

The Utilitarian School This statement also indicates the limits of all rights. If the exercise of a

particular will not maximise utility, the utilitarian is obligated to violate that person’s rights for the sake of utility.

PRINCIPLE OF UTILITY Nature has placed mankind under the governance of two sovereign

masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to

determine what we shall do. On the one hand the standard of right and wrong, on the other the

chain of causes and effects, are fastened to their throne. They govern us in all we do, in all we say, in all we think: every effort

we can make to throw off our subjection, will serve but to demonstrate and confirm it . . .

The Deliberative School Two of the main proponents of this type of

political philosophy are Jürgen Habermas and John Rawls, both of whom put forward theories rooted in political liberalism and influenced by Kantianism.

Habermas is a German and European and Rawls an American writing from the context of USA

The Deliberative School According to some, the most influential in the human rights discourse. These are political, normative theories, influential both as political

theories and as theories about human rights. These approaches are interested primarily in procedure: how consensus

can be achieved on normative matters which concerns society as a whole. Dialogues or deliberations play a key role in this procedure. The school

could also have been called “consensus”, because a main goal of the project is to reach agreement on basic normative issues.

These approaches are not directly concerned with human rights, but with an infrastructure which gives human rights their foundation and legitimation

The Deliberative School One of the main reasons why dialogue becomes

central relates to pluralism in societies. In this school, diversity is a condition which requires

particular attention, and it is the school which most directly engages with the issue of diversity.

It develops procedures to solve normative matters for societies containing wide-ranging or conflicting value positions.

The Protest School Dembour who coined this label, and she gives the following definition of

the “protest school”: “Human rights represent a perpetual calling, an ideal that can never fully

be achieved. Human rights are not about entitlements, but about claims and

aspirations. Protests scholars firmly believe that human rights are

(a) are moral, (b) must be raised when they are not socially recognized, (c) should concern every human being, especially those who are

forgotten”

(Dembour, 2006; 245).

The Protest School Another label might have been the “struggle school”. Many theoreticians understand human rights from a perspective of struggle,

not at least historians and sociologists such as Hunt (2007) and Lauren (1998).

Human rights are understood to have their origin in struggles, and they will also remain in a struggle, in a continual fight, because of their challenging messages and demands.

These claims will be fought for inside and outside the traditional human rights forums: “The struggle for human rights needs to continue both within and beyond

the legal debates and the corridors of international organizations”

(Ishay, 2004; 354).

The Discourse School This is probably the most controversial of the schools, and

some may even see it as a threat to human rights. It is on the margins of the overall human rights discourse, but

there are several spokespersons from different fields of knowledge who take these theoretical positions.

We find them in postcolonial, anthropological, Marxist, feminist, critical whiteness and postmodern theories. They have different horizons and agendas.

“for the truth is plain, there are no such rights, and belief in them is one with belief in witches and in unicorns”

(MacIntyre, 1985; 69).

The Discourse School This school is interested in the implications of human rights: what do human rights do? How to ground them? How to realize them? How human rights are used? What the consequence of human rights are? What do they

imply? The concept of “discourse” in this school is different from

Habermas For Habermas it means the normative dialogue, here it is the

whole use of human rights that is the discourse. Some will call this a postmodern way of using the concept

The Discourse School One of the issues on which this approach differs

from the previous schools is in relation to foundations of human rights:

“to find a firm foundation for individual rights is much more difficult than to claim that we have human rights” (Arslan, 1999; 200)

• Talal Asad.

The Fundamental Legal Conception

Wesely Hohfeld explained the theories of right in fundamental legal conceptions

The Comprehensiveness of Hohdeldian Relations

RIGHT LIBERTY POWER IMMUNITY

DUTY NO-RIGHT LIABILITY DISABILITY

RIGHT←→DUTY The holder of a right is normatively protected (with

the backing of the state, if necessary) against the interference or uncooperativeness of one or more other people.

Anyone vis-a-vis whom the right obtains is under a duty to comply with its terms, whether the terms call for noninterference or for assistance.

LIBERTY←→NO-RIGHT. The holder of a liberty is free of any duty to some other

person(s), with regard to the act or omission or state of affairs covered by the liberty.

Everyone vis-à-vis whom the liberty is held has no right that would limit the liberty-holder's freedom in the area of conduct covered by the liberty, though everyone may well have a liberty to interfere with the exercise of that freedom.

A liberty can be surrounded by a perimeter of rights, which serve to protect one’s ability to exercise the liberty (as Bentham, Hart, and Hillel Steiner have recognized).

POWERS←→LIABILITIES. The holder of a power can change or

cancel other people's entitlements and his own entitlements.

The bearer of a liability is exposed to amplifications or shifts or reductions in his or her entitlements.

IMMUNITIES←→DISABILITIES. The holder of an immunity is not exposed to the exercise of a

power within the domain covered by the immunity. In that domain, everyone vis-a-vis whom the immunity

obtains is disabled from changing the immunity holder's entitlements. Most of the entitlements conferred by so-called bills of

rights are immunities. Immunities must accompany other entitlements to prevent

them from being meaninglessly hollow.

Natural School Protest School

Deliberative School Discourse School

Dembour’s Matrix

LIB

ER

ALI

SM

SO

CIA

LIS

M

Human rights are universal, something natural or given. An individual has human rights in the capacity of being born as a human being.

HR Orthodoxy

Human rights are potentially universal, claims and aspirations. Human rights originate from social struggles.

HR Evangelism

Human rights only exist through law and are based on consensus. They provide good grounds for deliberation, a way of managing the political sphere.

HR Atheism

Human rights only exist because they are talked about. The reality of language is very strong, but allows for ‘consumerism’ of human rights.

HR Nihilism