THEORIES OF RIGHTS

INDEX

TOPIC PAGE NO.

General Notion Of Rights 3

Definitions Of Rights 5

Main Features Of Rights 6

Theories Of Rights 8

Bibliography 15

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 GENERAL NOTION OF RIGHTS

The concept of right is as old as the world, and it is often said we cannot think of a world without

rights, whatever it might be good and virtue but it would become morally insolvent. Right is

something, which arises from the obligation; it is something, which imposes a constraint,

whether by way of forbearance, acquiescence or active support, on the people. 

A right is described as an entitlement or justified claim to a certain kind of positive and negative

treatment from others, to support from others or non-interference from others. In other words, a

right is something to which every individual in the community is morally permitted, and for

which that community is entitled to disrespect or compulsorily remove anything that stands in

the way of even a single individual getting it.

Rights belong to individuals, and no organisation has any rights not directly derived from those

of its members as individuals; and, just as an individual's rights cannot extend to where they will

intrude on another individual's rights, similarly the rights of any organisation whatever must

yield to those of a single individual, whether inside or outside the organisation.

Rights are those important conditions of social life without which no person can generally realize

his best self. These are the essential conditions for health of both the individual and his society. It

is only when people get and enjoy rights that they can develop their personalities and contributes

their best services to the society.

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In simple words, rights are the common claims of people which every cultured society

recognizes as essential claims for their development, and which are therefore enforced by the

state.

The preamble to the Constitution of India stresses on the ‘rights’ but there is no explanation in

the Constitution. Any uncertainty, ambiguity, litigation, civil conflict and even war can be

resolved with the analysis of rights. The concept of rights helps to the maintenance of legal,

political, social, economic, cultural and educational status quo. 

The real credit of development of human civilization goes to law and its prohibitive process

which apprised man of his rights and duties as a unit of the society. When people come in

contact as members of society, they have certain legal rights and duties towards one another.

These rights and duties are regulated by the law prevalent in the society. It is well known that the

main purpose of law is to protect human interest by regulating the conduct of individuals in the

society. For the attainment of this objective, it is necessary that state should make use of its

physical force for the enforcement of legal rights and punish those who violate these rights. 

It, therefore, follows that in all civilized societies law consists of those rules which regulate

human conduct and it is the state which enforces the rights and duties created by such rules. The

conception of right accordingly is of fundamental significance in modern legal theory because

rights are indispensable for all civil societies and are recognized and enforced by the state. 

It is to be noted that the term “right” is closely connected with the terms “wrong” and “duty”.

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 DEFINITIONS OF RIGHTS

Sir John Salmond defines right as an interest recognized and protected by a rule or justice. It is

an interest in respect of which there is duty and the disregard of which is wrong. A man has

varied interests but all of them are not recognized by law. Many interests exist de facto and not

de jure; they receive no recognition or protection from any rule of right. The violation of them is

no wrong, and respect for them is no duty. Interests are things which are to man’s advantage,

e.g., a man has interest in his freedom or reputation.

Like wrongs and duties, rights are either moral or legal. A moral or natural right is an interest

recognized and protected by a rule of morality-violation of which would be a moral wrong. For

example, parent’s interest to command respect from their children is their moral right but if

children violate it, it is a moral wrong. A legal right, on the other hand is an interest recognized

and protected by a rule of law, violation of which would be a legal wrong. Thus, everyone has

right to privacy in his house and if any person interferes with this right, it would be a legal

wrong. 

John Austin observes, “A party has a right when another or others are bound or obliged by law

to do or forbear towards or in regard of him.” This definition has been criticized on the ground

that it overlooks the element of interest involved in the conception of right. John Stuart Mill

illustrates the inadequacy of Austin’s definition of right by pointing out that when a prisoner is

sentenced to death the jailor is duty-bound to execute him. 

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Ihiring also defines right as a “legally protected interest”. He considers law as a means to an

end. 

The eminent French jurist Duguit is opposed to the view that the basis of a legal right is human

will. He argues that all laws originate from social solidarity hence there is no existence of a right

as such. Duguit believes that human will is opposed to social good because it always leads to

conflict of interests between individuals. Therefore, there is no place for the concept of right in

society. Law being an expression of social solidarity, demands that everyone should abide by his

duties and has no right to claim rights. Thus, Duguit rejects the concept of rights as immoral

against the interest of the society. 

MAIN FEATURES OF RIGHTS

1. Rights exist only in society. These are the products of social living.

2. Rights are claims of the individuals for their development in society.

3. Rights are recognized by the society as common claims of all the people.

4. Rights are rational and moral claims that the people make on their society.

5. Since rights are here only in society, these cannot be exercised against the society.

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6. Rights are to be exercised by the people for their development which really means their

development in society by the promotion of social good. Rights can never be exercised

against social good.

7. Rights are equally available to all the people.

8. The contents of rights keep on changing with the passage of time.

9. Rights are not absolute. These always bear limitations deemed essential for maintaining

public health, security, order and morality.

10. Rights are inseparably related with duties. There is a close relationship between them. No

Duties No Rights. If individuals have rights it is their duty to respect the rights of others

in society.

11. Rights need enforcement and only then these can be really used by the people. These are

protected and enforced by the laws of the state. It is the duty of a state to protect the

rights of the people.

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 THEORIES OF RIGHTS

 THE WILL THEORY:

The Will theory of legal rights has been supported by Hegel, Kant, Hume and others.

According to this theory, a right is an inherent attribute of the human will. The subject-

matter of right is derived from human will. The theory suggests that it is through a right

that a man expresses his will over an object. The theory has been also accepted by

historical jurists of Germany. Puchta observed that a legal right is a power over an object

which by means of his right can be subjected to the will of the person enjoying the right.

Vinogradoff considers that psychology of asserting claim is the basis of legal right. In a

social order established by law no man is absolutely free to act as he likes, but his

freedom of action is restricted due to rights of others.

The attraction of the will theory is that it reserves for rights the special role of securing

dominion over significant spheres of action. Many important rights do endow right-

holders with this kind of discretion, and so serve the freedom of those who hold them.

The connection between rights and freedom, so powerful in modern politics, is for will

theorists a matter of definition. 

However, the will theorist’s sole focus on a certain sort of freedom constrains what he

recognizes as a right. The will theorist recognizes as a right only those Hohfeldian

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 incidents that confer on their bearers the discretion to alter the duties of others. Thus, the

will theorist recognizes as rights only those molecular structures that include a paired

power not to create, waive or annul a claim that one person has against another.1 This

view of the function of rights also entails a restriction on the class of potential right-

holders. The will theorist recognizes as potential right-holders only those beings that have

certain capacities: the capacities to exercise powers to alter the duties of others.

These constraints render the will theory implausibly narrow. This narrowness is evident,

first, in the range of rights that the theory recognizes. Many important rights, such as the

complex bodily right, do include a paired power to alter a claim. But many do not. For

example, you have no legal power to waive or annul your claim against being enslaved,

or your claim against being tortured to death. The will theory therefore does not

recognize that you have a legal right against being enslaved, or against being tortured to

death. Yet most would regard these un-waivable claims as rights, indeed as among the

more important rights that individuals have. 

The limitations of the will theory are also evident in its inability to account for the rights

of incompetent (e.g., comatose) adults, and of children. The will theory can acknowledge

rights only in those beings competent to exercise powers, which incompetent adults and
1
Hart, pp.183–84;cf.Wellman, A Theory of Rights, p.199.

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 children are not. Incompetent adults and children therefore cannot on this view have

rights. This is certainly a result at variance with ordinary understanding. Few would insist

that it is conceptually impossible, for example, for children to have a right against severe

abuse. 

 THE INTEREST THEORY: Another popular theory regarding the nature of legal right

is called the Interest theory which was mainly propounded by the German Jurist Ihring.

According to this theory, “a legal right is a legally protected interest.”

Ihring does not emphasize on the element of will in a legal right. He asserts that the basis

of legal right is “interest‟ not will.

The main object of law is protection of human interests and to avert a conflict between

their individual interests. But Salmond has criticized Ihring’s theory on the ground that it

is incomplete since it completely overlooks the element of recognition by state. A legal

right should not be protected by the state but should also be legally recognized by it. He

cites an example to substantiate this view. The interests of beasts are to some extent

protected by law in as much as cruelty to animals is a criminal offence.2 But beasts

cannot for that reason be said to possess a legal right of not being treated with cruelty.

Salmond treats the right to protection of animals from cruelty merely as a moral right. 

2
In India, the Prevention of Cruelty to Animals Act, 1960

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 As MacCormick puts it, “The essential feature of rules which confer rights is that they

have as a specific aim the protection or advancement of individual interests or goods.”3

The interest theory is not committed to the implausible thesis that each right is always in

the interest of the right-holder. Some inheritances, for example, are more trouble than

they are worth. Rather, the interest theory holds that the function of rights is to promote

right-holders’ interests in the general case: “To ascribe to all members of a class C a right

to treatment T is to presuppose that T is, in all normal circumstances, a good for every

member of C.”4

Since the interest theory turns on the right-holder’s interests instead of her choices, it can

recognize as rights unwaivable claims such as the claims against enslavement and torture.

The interest theory also has no trouble viewing children and incompetent adults as right-

holders, since children and incompetent adults have interests that rights can protect.

Moreover, the interest theory can accept a wide range of Hohfeldian incidents- such as a

claim to another’s assistance and the immunity that protects free speech- as promoting

the well-being of their holders and so as rights. Finally, the interest theory can

acknowledge that individuals may be better off having the power to make choices, and so

can embrace many of the rights central to the will theory. The appeal of the interest

theory emanates from the wide range of rights that it can endorse, and from the evident

fact that having rights can make a life go better. 

3
MacCormick, “Rights in Legislation,” p. 192.

4
Neil MacCormick, “Children’s Rights: A Test-Case for Theories of Rights,” Archiv für Rechtsund Sozialphilosophie 62 (1976):
311; see Joseph Raz, The Morality of Freedom (Oxford: Oxford University Press, 1986), p. 180.

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 PROTECTION THEORY: The totalitarian view completely denies the existence of

legal rights. They argue that State being omnipotent, individual has no separate existence

from it. Therefore, in fact all rights belong to the State and the individuals do not have

any independent legal right as such. This view has, however, been rejected being far from

reality in the modern context of democratic welfare States.

 LASKI’S THEORY OF RIGHTS: Harold Laski, an influential figure and

creative writer of political science, who authored about 20 books, has expounded the

theory of rights and it is in many respects a classic representation. He describes rights as

“those conditions of social life without which no man can seek, in general, to be himself

at his best”. Laski calls rights as conditions of social life. Rights are social concept and

deeply linked with social life. The essentiality of rights is established by the fact that

individuals claim them for the development of their best self. He places rights,

individuals and state on the same board in the sense that they cannot be separated from

each other and there is no antagonism between them.

Laski recommends the long-cherished view that the state has a very important role to play

in the realisation and, before that, recognition of human rights. On legal theories of rights,

Laski examines the legal theory of state. The central principle of the legal theory of rights

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 is that they completely depend upon the institutions and recognition of state. An

individual cannot claim rights if those are not recognised by the state. Mere recognition,

moreover, is not sufficient for the exercise of rights. The state must, through law and

institutions, implement the rights.

The most significant part of Laski’s theory is functional aspect of rights. It emphasizes on

the relation between right and duty. He stated that Rights are correlative to functions. The

functional theory emphasizes that an individual is entitled to claim rights only when he

performs duty otherwise the claim or demand for right cannot be entertained. This

definitely opposes widely known theory of legal theory of rights. But today, rights are

recognised and protected mainly on political considerations.

 BARKER’S THEORY OF RIGHT: Barker’s view is not theoretically dissimilar from

that of Laski. Both are liberal philosophers, but Barker has a clear bias to idealism. The

main purpose of every political organisation called state is to see that the personality of

the individual gets ample scope for development. It is the duty of the state to guarantee

and secure the conditions essential for that objective. These secured and guaranteed

conditions are called rights. Individual’s personality cannot develop automatically or

under most adverse or antagonistic environment. Development of personality requires

favourable conditions and these are to be guaranteed by the state through the enactment

of law.

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Barker also discusses the moral aspect of rights. He says, that law of the state helps me to

secure rights. But rights are claims and the origin is the individual himself. The individual

is a moral person and it is his determination that he will develop his moral personality

through the rights. His purpose is not to inflict any harm upon the society. The

implication of moral being is,- he releases his best efforts for the general welfare of

society.

BIBLIOGRAPHY

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# Dr. N V. Paranjape, Studies In Jurisprudence & Legal Theory

# H. L. A. Hart, The Concept of Law

# John Salmond, Jurisprudence

#MacCormick, Rights in Legislation

#civilserviceindia.in

#indianjurisprudence.com

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