Commentators like Weissbrodt and Vasak have categorically stated that human rights have
become ‘a universal ideology’. But this proposition is also subject to criticism. Though there is virtually no disagreement among the scholars on the desirability of entitlements and
empowerments of human beings, there are wide disagreements among them on the nature, extent,
typology and dimension of human rights. All these issues are normative in nature and
consequently these have been viewed and explained by the scholars from different subjective
standpoints. Naturally, the central points of human rights have been analysed from a good number
of ideological and philosophical perspectives.
The theory of natural rights has been advocated mainly by Thomas Hobbes (Leviathan, 1651),
John Locke (Two Treatises on Government, 1690) and J.J. Rousseau (The Social Contract,
1762).The natural rights paradigm of human rights views human rights from a somewhat abstract
and metaphysical perspective. A product of Greek philosophy, the theory flourished in the
seventeenth and eighteenth centuries as an antidote to the Divine Right of Kings. These
contractualists, after having provided the social contract theory, hold the view that
there were natural rights possessed by men in the state of nature and that these rights were
attributed to individuals as if they were the essential properties of men as men. The
contractualists, therefore, declared that the rights are inalienable, imprescriptable and indefeasible
Thus, the society or the state can neither create them nor modify them. They are universal and
hence, valid for all. The authority of the state is justified as legitimate only because, and so long
as, it protects the natural rights of man. A close look at the natural rights theory reveals some
essential elements of the theory that require further elaboration.
In the first place, the theory holds that human beings are born with the natural rights and as such,
they are part of their initial equipment in the same way as their bodies are. Hence, these natural
rights are thought to be innate and inalienable.
Secondly, natural rights are pre-social. They are not the product of any social or political system.
Rather, the society and polity came into being to ensure the recognition and enforcement of those
natural rights. Thirdly, natural rights are thought to be absolute and hence cannot be negotiated, compromised or diminished.
Finally, natural rights theory assumes that natural rights are universal.
The theory of natural rights is criticised on many grounds. Rights cannot be natural simply
because they were the possessions of men in the state of nature. There can never be rights before
the emergence of society: the notion of pre-society rights is a contradiction in terms. If at all there
was anything in the state of nature, they were mere physical energies, and not rights. Rights
presuppose the existence of some authority to protect them. In the state of nature where no state
existed, how can one imagine rights in the absence of a state: who would defend people’s rights in
the state of nature? The contractualists have no answer. To say that natural rights existed in the
state of nature is to make them absolute or beyond the control of society. For Bentham, the
doctrine of natural rights was ‘a rhetorical non-sense upon stilts.’ Laski also rejects the whole idea
of natural rights. Rights, as natural rights, are based on false assumptions that we can have rights
and duties independently of society. Burke had pointed out, rather eloquently, when he said that
we cannot enjoy the rights of civil and uncivil state at the same time: the more perfect the natural
rights are in the abstract, the more difficult it is to recognise them in practice.
Rights are natural, and not that there are natural rights, in the sense that they are the conditions
which human beings need to realise themselves. Laski realises the significance of rights when
he says that rights ‘are not natural in the sense that a permanent and unchanging catalogue of
them can be compiled, rather they are natural in the sense that under the limitations of a civilized
life, facts demand their recognition.’
Similarly, the point that arranged protection of human rights is also necessary with social
recognition leaves one into another dilemma onto how human rights are to be protected. Few
questions are asked in this connection:
a) Will it be possible to ensure universality in the process of protection?
b) Will not the protection of human rights amount to violation of human rights for the sake of
protection?
c) Who is going to assume the responsibility for the protection?
Such questions are, however, very complex in nature and not a single answer can be given for
these questions. Even the natural rights theorists like Hobbes, Locke and Rousseau could not offer
specific answers to these questions.
Under the influence of the “Enlightenment” of the eighteenth century, the positivistparadigm
conceives of human rights as the ‘derivative’ of the laws of the state. The core of the argument of
this paradigm is that the existence and content of human rights are derived from and hence,
dependent on, the positive law of the state. The Benthamite ideas centre round the issue that
human existence is dominated by pleasure and pain and that human conditions may be improved
by increasing pleasure and diminishing pain. Bentham’s utilitarianism, therefore, takes a
majoritarian approach to human rights. A close look at the positivist paradigm suggests that its
legal backing enables the individuals to point to concrete norms and principles that allow them to
vindicate their rights. Thus, the positivist paradigm appears to be an improvement upon the
abstract and moral natural rights paradigm.
Libertarian explanations of human rights strongly criticise the positivist-utilitarian paradigm and
notable scholars in this group are Robert Nozick, R. Dworkin, John Rawls, Friedrick Hayck. In
the opinion of Nozick, a group of men and women, in a state of nature, come together to form a
minimal state. The minimal state is based on certain moral precepts and the role of the minimal
state is limited to the enforcement of moral rights of the individuals. John Rawls argues that
justice is a way of distributing rights, duties, benefits and burdens among individuals within a
society. In his formulation, he starts with the familiar social contract theory in which all persons
are in equal position of equality as regards the distribution of freedom and power. But he admits
that each person is under the spell of a ‘veil of ignorance’ about his or her own personal qualities
or attributes. In Hayek’s theory, human freedom is regarded as pre-condition for order, virtue and
progress of the society. To him, human freedom has been reduced by an activist state that has
emerged under the ‘grab of deceptive popular constitutional government’. Hayek’s answer to the protection of the spheres of individual freedom is a ‘limited state’ based on spontaneous order in
the society.
The theory of legal rights or the legal theory of rights connotes the same sense. The idealist
theory of rights which seeks to place rights as the product of the state can be, more or less, seen as
another name of the theory of legal rights. Among the advocates of such theories, the names of
Bentham, Hegel and Austin can be mentioned. According to them, rights are granted by the state,
regarding rights as a claim which the force of the state grants to the people. The essential features
of these theories, then, are:
(i) the state defines and lays down the bill of rights: rights are neither prior nor anterior to the state
because it is the state which is the source of rights;
(ii) the state lays down a legal framework which guarantees rights and that it is the
state which enforces the enjoyment of rights;
(iii) as the law creates and sustains rights, so when the content of law changes, the substance of
rights also changes.
The theories which point out rights having originated from the state are criticised in numerous
ways. The state, indeed, defends and protects our rights; it does not create them as the
advocates of these theories make us believe. If we admit that the rights are the creation of the
state, we will have to accept the view that if the state can give us rights, it can take them away
as well. Obviously, such an opinion would make the state absolute. In that case, we would have
only those rights which the state would like to give us.
The historical theory of rights, also called the prescriptive theory, regards the state as the
product of a long historical process. It holds the view that rights grow from traditions and
customs. The conservative Burke argued, while throwing his weight to the prescriptive theory,
that the people have a right over anything that they exercise or enjoy uninterruptedly over a
fairly long passage of time. So considered, every right is based on the force of long observance.
As traditions and customs stabilise owing to their constant and continuous usage, they take the
shape of rights. The theory has its origins in the 18th century in the writings of Edmund Burke
and was adopted later by the sociologists.
The historical theory of rights is important in so far as it condemns the legal theory of rights.
It is also important in so far as it denies the theory of natural rights. The state recognises, the
advocates of the historical theory of rights argue, what comes to stay through long usage.
The historical theory of rights suffers from its own limitations. It cannot be admitted that all our
customs result in rights: the Sati system does not constitute a right nor does infanticide. All our
rights do not have their origins in customs. Right to social security, for example, is not related
to any custom.
The social welfare theory of rights presumes that rights are the conditions of social welfare.
The theory argues that the state should recognise only such rights as help promote social
welfare. Among the modern advocates of the social welfare theory, the name of Roscoe Pound
and Chafee can be mentioned though Bentham can be said to be its advocate of the 18th
century. The theory implies that rights are the creation of the society in as much as they are
based on the consideration of common welfare: rights are the conditions of social good which
means that claims not in conformity with the general welfare, and therefore, not recognised by
the community do not become our rights.
The social welfare theory of rights is also not without its faults. It dwells on the factor of social
welfare, a term too vague to be precise. The Benthamite formula ‘greatest good of the greatest
number’ is different to different people. The theory turns out to be the legal theory of rights
if, in the end, the state is to decide what constitutes ‘social welfare’. A critic like Wilde is of
the view that ‘if rights are created by the consideration of social expediency, the individual is
without an appeal and helplessly dependent upon its arbitrary will.’
The Marxist perspective looks at the issue of human rights from a different angle: the foundations
of class and class-conflict. Under this construction, rights are viewed simply to be bourgeon’s
concepts and as such, a product of bourgeon’s capitalist society, designed to protect the interests
of the bourgeon’s class. In the Marxist paradigm, the essence of an individual is that of a social being using his abilities to satisfy his needs. The true potential of human rights can be realised only in a class-less situation.
The Marxist paradigm, by adopting the materialistic interpretation of social development, seems
to provide a scientific and logical explanation as to how rights could be enjoyed in a perfect
socio-economic order.
To secure rights for all in a class society, the Marxists argue, is not the object of the class state;
rather its aim is to protect and promote the interests of the class wielding economic power.
According to Marx, the class which controls the economic structure of society also controls
political power and it uses this power to protect and promote its own interests rather than the
interests of all. In the socialist society which follows the capitalist society, as the Marxian
framework suggests, the socialist state, through the proletarian laws, would protect and promote
the interests/rights of the working class. As the socialist society, unlike the capitalist society, is a
classless society, its state and laws protect the rights not of any particular class but of all the
people living in the classless society. The Marxists say that the socialist state, as an instrument of
social and political and economic change, would seekto establish socialism which will be based
on the principle of ‘from each to his ability to each according to his work’, the system of rights
for all would follow this pattern: economic rights (work, social security) first, followed by social
rights (education) and political rights (franchise rights).
The Marxist theory of rights, like Marxism itself, suffers from its deterministic ideology, though
its emphasis on non-exploitative socialist system is its characteristic feature. Neither the economic
factor alone provides the basis of society nor the superstructure is the reflection of only the
economic base; for non-economic forces also play their role in determining the superstructure.
become ‘a universal ideology’. But this proposition is also subject to criticism. Though there is virtually no disagreement among the scholars on the desirability of entitlements and
empowerments of human beings, there are wide disagreements among them on the nature, extent,
typology and dimension of human rights. All these issues are normative in nature and
consequently these have been viewed and explained by the scholars from different subjective
standpoints. Naturally, the central points of human rights have been analysed from a good number
of ideological and philosophical perspectives.
Natural Rights Perspective
The theory of natural rights has been advocated mainly by Thomas Hobbes (Leviathan, 1651),
John Locke (Two Treatises on Government, 1690) and J.J. Rousseau (The Social Contract,
1762).The natural rights paradigm of human rights views human rights from a somewhat abstract
and metaphysical perspective. A product of Greek philosophy, the theory flourished in the
seventeenth and eighteenth centuries as an antidote to the Divine Right of Kings. These
contractualists, after having provided the social contract theory, hold the view that
there were natural rights possessed by men in the state of nature and that these rights were
attributed to individuals as if they were the essential properties of men as men. The
contractualists, therefore, declared that the rights are inalienable, imprescriptable and indefeasible
Thus, the society or the state can neither create them nor modify them. They are universal and
hence, valid for all. The authority of the state is justified as legitimate only because, and so long
as, it protects the natural rights of man. A close look at the natural rights theory reveals some
essential elements of the theory that require further elaboration.
In the first place, the theory holds that human beings are born with the natural rights and as such,
they are part of their initial equipment in the same way as their bodies are. Hence, these natural
rights are thought to be innate and inalienable.
Secondly, natural rights are pre-social. They are not the product of any social or political system.
Rather, the society and polity came into being to ensure the recognition and enforcement of those
natural rights. Thirdly, natural rights are thought to be absolute and hence cannot be negotiated, compromised or diminished.
Finally, natural rights theory assumes that natural rights are universal.
The theory of natural rights is criticised on many grounds. Rights cannot be natural simply
because they were the possessions of men in the state of nature. There can never be rights before
the emergence of society: the notion of pre-society rights is a contradiction in terms. If at all there
was anything in the state of nature, they were mere physical energies, and not rights. Rights
presuppose the existence of some authority to protect them. In the state of nature where no state
existed, how can one imagine rights in the absence of a state: who would defend people’s rights in
the state of nature? The contractualists have no answer. To say that natural rights existed in the
state of nature is to make them absolute or beyond the control of society. For Bentham, the
doctrine of natural rights was ‘a rhetorical non-sense upon stilts.’ Laski also rejects the whole idea
of natural rights. Rights, as natural rights, are based on false assumptions that we can have rights
and duties independently of society. Burke had pointed out, rather eloquently, when he said that
we cannot enjoy the rights of civil and uncivil state at the same time: the more perfect the natural
rights are in the abstract, the more difficult it is to recognise them in practice.
Rights are natural, and not that there are natural rights, in the sense that they are the conditions
which human beings need to realise themselves. Laski realises the significance of rights when
he says that rights ‘are not natural in the sense that a permanent and unchanging catalogue of
them can be compiled, rather they are natural in the sense that under the limitations of a civilized
life, facts demand their recognition.’
Similarly, the point that arranged protection of human rights is also necessary with social
recognition leaves one into another dilemma onto how human rights are to be protected. Few
questions are asked in this connection:
a) Will it be possible to ensure universality in the process of protection?
b) Will not the protection of human rights amount to violation of human rights for the sake of
protection?
c) Who is going to assume the responsibility for the protection?
Such questions are, however, very complex in nature and not a single answer can be given for
these questions. Even the natural rights theorists like Hobbes, Locke and Rousseau could not offer
specific answers to these questions.
Positivist Perspective
Under the influence of the “Enlightenment” of the eighteenth century, the positivistparadigm
conceives of human rights as the ‘derivative’ of the laws of the state. The core of the argument of
this paradigm is that the existence and content of human rights are derived from and hence,
dependent on, the positive law of the state. The Benthamite ideas centre round the issue that
human existence is dominated by pleasure and pain and that human conditions may be improved
by increasing pleasure and diminishing pain. Bentham’s utilitarianism, therefore, takes a
majoritarian approach to human rights. A close look at the positivist paradigm suggests that its
legal backing enables the individuals to point to concrete norms and principles that allow them to
vindicate their rights. Thus, the positivist paradigm appears to be an improvement upon the
abstract and moral natural rights paradigm.
Libertarian Perspective
Libertarian explanations of human rights strongly criticise the positivist-utilitarian paradigm and
notable scholars in this group are Robert Nozick, R. Dworkin, John Rawls, Friedrick Hayck. In
the opinion of Nozick, a group of men and women, in a state of nature, come together to form a
minimal state. The minimal state is based on certain moral precepts and the role of the minimal
state is limited to the enforcement of moral rights of the individuals. John Rawls argues that
justice is a way of distributing rights, duties, benefits and burdens among individuals within a
society. In his formulation, he starts with the familiar social contract theory in which all persons
are in equal position of equality as regards the distribution of freedom and power. But he admits
that each person is under the spell of a ‘veil of ignorance’ about his or her own personal qualities
or attributes. In Hayek’s theory, human freedom is regarded as pre-condition for order, virtue and
progress of the society. To him, human freedom has been reduced by an activist state that has
emerged under the ‘grab of deceptive popular constitutional government’. Hayek’s answer to the protection of the spheres of individual freedom is a ‘limited state’ based on spontaneous order in
the society.
Legal Rights Perspective
The theory of legal rights or the legal theory of rights connotes the same sense. The idealist
theory of rights which seeks to place rights as the product of the state can be, more or less, seen as
another name of the theory of legal rights. Among the advocates of such theories, the names of
Bentham, Hegel and Austin can be mentioned. According to them, rights are granted by the state,
regarding rights as a claim which the force of the state grants to the people. The essential features
of these theories, then, are:
(i) the state defines and lays down the bill of rights: rights are neither prior nor anterior to the state
because it is the state which is the source of rights;
(ii) the state lays down a legal framework which guarantees rights and that it is the
state which enforces the enjoyment of rights;
(iii) as the law creates and sustains rights, so when the content of law changes, the substance of
rights also changes.
The theories which point out rights having originated from the state are criticised in numerous
ways. The state, indeed, defends and protects our rights; it does not create them as the
advocates of these theories make us believe. If we admit that the rights are the creation of the
state, we will have to accept the view that if the state can give us rights, it can take them away
as well. Obviously, such an opinion would make the state absolute. In that case, we would have
only those rights which the state would like to give us.
The Historical Perspective of Rights
The historical theory of rights, also called the prescriptive theory, regards the state as the
product of a long historical process. It holds the view that rights grow from traditions and
customs. The conservative Burke argued, while throwing his weight to the prescriptive theory,
that the people have a right over anything that they exercise or enjoy uninterruptedly over a
fairly long passage of time. So considered, every right is based on the force of long observance.
As traditions and customs stabilise owing to their constant and continuous usage, they take the
shape of rights. The theory has its origins in the 18th century in the writings of Edmund Burke
and was adopted later by the sociologists.
The historical theory of rights is important in so far as it condemns the legal theory of rights.
It is also important in so far as it denies the theory of natural rights. The state recognises, the
advocates of the historical theory of rights argue, what comes to stay through long usage.
The historical theory of rights suffers from its own limitations. It cannot be admitted that all our
customs result in rights: the Sati system does not constitute a right nor does infanticide. All our
rights do not have their origins in customs. Right to social security, for example, is not related
to any custom.
The Social Welfare Perspective of Rights
The social welfare theory of rights presumes that rights are the conditions of social welfare.
The theory argues that the state should recognise only such rights as help promote social
welfare. Among the modern advocates of the social welfare theory, the name of Roscoe Pound
and Chafee can be mentioned though Bentham can be said to be its advocate of the 18th
century. The theory implies that rights are the creation of the society in as much as they are
based on the consideration of common welfare: rights are the conditions of social good which
means that claims not in conformity with the general welfare, and therefore, not recognised by
the community do not become our rights.
The social welfare theory of rights is also not without its faults. It dwells on the factor of social
welfare, a term too vague to be precise. The Benthamite formula ‘greatest good of the greatest
number’ is different to different people. The theory turns out to be the legal theory of rights
if, in the end, the state is to decide what constitutes ‘social welfare’. A critic like Wilde is of
the view that ‘if rights are created by the consideration of social expediency, the individual is
without an appeal and helplessly dependent upon its arbitrary will.’
The Marxist Perspective of Rights
The Marxist perspective looks at the issue of human rights from a different angle: the foundations
of class and class-conflict. Under this construction, rights are viewed simply to be bourgeon’s
concepts and as such, a product of bourgeon’s capitalist society, designed to protect the interests
of the bourgeon’s class. In the Marxist paradigm, the essence of an individual is that of a social being using his abilities to satisfy his needs. The true potential of human rights can be realised only in a class-less situation.
The Marxist paradigm, by adopting the materialistic interpretation of social development, seems
to provide a scientific and logical explanation as to how rights could be enjoyed in a perfect
socio-economic order.
To secure rights for all in a class society, the Marxists argue, is not the object of the class state;
rather its aim is to protect and promote the interests of the class wielding economic power.
According to Marx, the class which controls the economic structure of society also controls
political power and it uses this power to protect and promote its own interests rather than the
interests of all. In the socialist society which follows the capitalist society, as the Marxian
framework suggests, the socialist state, through the proletarian laws, would protect and promote
the interests/rights of the working class. As the socialist society, unlike the capitalist society, is a
classless society, its state and laws protect the rights not of any particular class but of all the
people living in the classless society. The Marxists say that the socialist state, as an instrument of
social and political and economic change, would seekto establish socialism which will be based
on the principle of ‘from each to his ability to each according to his work’, the system of rights
for all would follow this pattern: economic rights (work, social security) first, followed by social
rights (education) and political rights (franchise rights).
The Marxist theory of rights, like Marxism itself, suffers from its deterministic ideology, though
its emphasis on non-exploitative socialist system is its characteristic feature. Neither the economic
factor alone provides the basis of society nor the superstructure is the reflection of only the
economic base; for non-economic forces also play their role in determining the superstructure.
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