Concept of Rights: Conventional Theories of Rights: one-liners notes

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• The Concept of rights is a dynamic concept.

• Negative and Positive Right: 

• Negative Rights: these rights suggest the sphere where the state is not permitted to enter.

• Freedom of thought and expression implies that the state shall not impose any restriction on individual's thought and expression, it will be described as there negative rights.

• Positive Rights: prescribe the responsibility of the state in securing rights of individuals.

• The state shall provide universal education to promote its citizens' faculty of thoughts and expression, it will be described as their positive rights.

• Conventional Theories of Rights: 

• (a) Theory of natural rights

• (b) Theory of moral rights

• (c) Theory of legal rights 

• (d) Historical theory of rights and 

• (e) Social-welfare theory of rights

• Theory of Natural Rights:

• Theory of natural rights represents an early expression of the liberal perspective on rights. 

• It was very popular in 17th and 19th centuries political thought centuries' political thought.

• This theory was broadly developed on two important basis - the contractual basis ad the teleology basis.

• Contractual Basis: 

• In the first place, the theory of natural rights is based on liberal theory of the origin of the state from the 'Social Contract'.

• According to this theory, certain rights are enjoyed by man in the 'state of nature', that is before the formation of civil society itself.

• The exponents of the social contract theory John Locke (1632-1704) is the most ardent champion of natural rights.

• Locke gave a new turn to the social contract theory which was introduced by Thomas Hobbes (1588-1679).

• Hobbes draws picture of the state of nature and deprecates natural rights as the freedom of the stronger to oppress the weaker.

• He, therefour, postulates an unconditional surrender of natural rights when civil society is formed.  

• Jean-Jacques Rousseau (1712-78), another exponent of the social contract theory, depicted natural rights in a different light. 

• Rousseau draws q fascinating picture of the state of nature and glorifies naturel rights.

• He postulates that these rights become irrelevant in civil society. 

• Both Hobbes and Rousseau do not think that natural rights would be maintained by the state. 

• Teleology Basis: 

• Teleology means the doctrine of the final causes. 

• It refers to the view that any developments in human life are the product of the purpose or design that is served by them. 

• The teleology view of rights, therefore, seeks to relate the rights of man with the purpose of human  life.

• These rights do not depend on any institutional arrangements. 

• Tom Paine (1737-1809), in his Rights of Man (1791), enunciated the theory of natural rights on teleology basis.

• Paine rejected the doctrine of the social contract as it was 'eternally binding and hence a clog on the wheel of progress'. 

• Theory of natural rights served as a source of inspiration for the American and French Revolution. 

• Theory of Moral Rights: 

• Moral Rights theory believe in the convergence of law and morality.

• Like theory theory of natural rights, theory of moral rights emanates from the dictates of human reason.

• It particularly relies on human being's sense of right and wrong, good and evil, etc. 

• Moral Rights are based on the accepted moral in society. 

• Exponents of the theory of moral rights sought to building this theory on teleology basis as done by some exponents of the theory of natural rights.

• Immanuel Kant (1724-1804), German Philosopher, also sought to build a bridge connecting the moral realm to the political-legal realm. 

• Kant argued that reason is the distinctive feature on man and on human agency. 

• It impels him to treat himself and all other persons an ends, and not as means only. 

• T.H. Green (1836-82), English Philosopher, also sought to build his theory of moral rights on the teleology basis.

• Green argues that the rights of man do not emanate from a transcendental law as Locke had maintained, but they come from the moral character of man himself.

• Ronald Dworkin (Taking Rights Seriously; 1977) held that in the sphere of rights, separation between law and morality was impossible. 

• He argued that law ought to 'take rights seriously'. 

• Another well-known work Law's Empire (1986) Dworkin projected his vision of 'law as integrity' which combined the goals of descriptive theory and normative theory.

• Theory of Legal Rights: 

• Theory of legal rights holds that all rights of man depend on the state for their existence.

• Harold J. Laski, in his A Gramer of Politics (1938), criticised the theory of legal rights.

• The theory of legal rights takes account of the factual position only; it takes note of what rights are legally recognised and guaranted in a particular state. 

• Jeremy Bentham (1748-1832) is the greatest champion of the theory of legal rights.

• He rejectes the doctrine of natural rights as unreal and ill-founded, in his principles of Legislation (1789)

• Ernest Barker, in his Principles of Social and Political Theory (1951) has beautifully described this dilemma about the nature of rights, and support it.

• Historical Theory of Rights:

• Historical theory of rights holds that rights are the product of a long historical process.

• The differ from state to state and from time to time because of the different levels of historical development of society.

• This theory originated in eighteenth century conservative political thought.

• Edmund Burke (1729-97) the greatest champion of historical theory of rights.

• He criticised the French Revolution (1789)

• Social-wellfare theory of rights:

• Social-wellfare theory of rights makes a departure from the conventional theory of rights. 

• This theory postulates that rights are, in essence, conditions of social-wellfare.

• Social-wellfare theory of rights found a reasoned and elaborate expression in Social-democratic perspective on rights. 



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