Covenant University

Department of Political Science and International Relations

Course Title: Citizen and State

Course Code: POS 121

Session: 2021/22 Omega Semester

Lecturer: Dr. Nchekwube Excellence-Oluye

Topic: Concepts and Theories of Human Rights

The phenomenon known as human rights is connected not only with the protection of individual from the
exercise of state but also directed towards the creation of societal conditions by the state in which
individuals may develop to their fullest extent. In this sense, the description may reveal what human
rights are intended to achieve in a teleological sense, but it does not reveal which human rights exists or
what they are. Some of the major theories that are of relevance to human rights are:

Natural Law and Natural Rights: The autonomous individual

Philosophers and jurists did not leave human rights solely to theologians. The latter used theology to
present the basis of human rights theory stemming from a law higher than the state and whose source is
the Supreme Being. The belief that human beings created in the image of God, endows human with a
worth and dignity from, which there can logically flow the components of a comprehensive human rights
system, as emphasized by Thomas Aquinas, made Natural law embodying principles of justices which
were right reason i.e. in accordance with nature, unalterable and eternal. Grotius severed natural law from
its theistic origins and made it a product of enlightened secular rational thought. He defined natural law as
a 'dictate of right reason’, which points out that an act, according as it is or is not in conformity with
rational nature, has in it a quality of moral baseness or moral necessity. Thus, all rules were ascertainable
by the application of 'right reason' and did not depend on the Deity for their validity.

Natural law theory led to natural rights theory, and the chief exponent John Locke argued that all
individuals were endowed by nature with the inherent rights to life, liberty and property which were their
own and could not be removed or abrogated by state. From the Lockean view of natural rights two things
were evident; (1) the individual is an autonomous being capable of exercising choice and, (2) the
legitimacy of government depends not only upon the will of the people, but also upon the government’s
willingness and ability to protect those individual natural rights.

Rousseau declared that natural law conferred inalienable sovereignty on the citizens of the state as a
whole. Thus, whatever rights were derived from natural law dwelt within the people as a collectivity and
could be identified by reference to the 'general will'. The language of both the American and French
Revolution and the writings of Rousseau and Kant demonstrate the philosophical pedigree of natural law
and natural rights. Kant's theory based on non-empirical natural law and natural rights tradition suggested
that the absolute moral good, which is identifiable in the exercise of virtuous, will by all rational
individuals, to which he calls 'categorical imperative’. This operated at three levels: first, it specifies
universal acts of duty on all individuals; second it provides systematic rules for determining these duties;
and, third, it specifies the relationship between freedom and duties. In. a society of rational self-
determining human beings, Kant postulated that freedoms or rights would emerge as a consequence of the
application of the categorical imperative. Natural rights theory was contested by positivists and
utilitarians on the ground that any attempt to have a priori moral or value structure and assumptions
derived from personal preferences of the various theorist is misleading and lacks objective existence.
Therefore, rights considered to be natural differ from theorist to theorist, depending upon their
conceptions of nature.

Positivism and Utilitarianism: the authority of the state

Positivists argued that the existence and content of rights could be derived only from the laws of the state
and not from God, reason or a priori moral assumptions. Views on which law ought to be have no place
and are cognitively worthless. David Hume argued that inquiry into social phenomenon can have 'fact
category' i.e. 'is' and ‘value category' i.e. 'ought'. It is the 'is' - those matters which were empirically
provable-that form the basis of valid scientific enquiry.

Bentham gave humanitarian face to apparent amoral starkness of Hume's position by developing a school
of positivism known as utilitarianism. Bentham's utilitarianism morality was derived not from
metaphysical source but from the expression of the majority's preferences. The central thesis of
utilitarianism, based on hedonism, was that pleasure and pain, and that dominated human existence by
increasing the former and diminishing the latter, the lot of mankind would be improved. In practice,
however, instead of maximization of felicity i.e. greatest happiness to the greatest number of people, it
had the potential to lead to a "tyranny of the majority" and to the "oppression of the minority" in any
given state. John Austin, furthering positivism to an extent where he argued that rights are simply those
rules which the state has enacted for the protection of individuals and their property interest. The only
valid laws, therefore, were the command of sovereign or the ruling political power, which were
accompanied by appropriate sanctions or remedies. Indeed, positivist thinkers such as Bentham and
Austin were often in the vanguard of those who sought to bring about reform in law offering flexibility to
meet changing needs since it is always under human control.

The positivist theory, by philosophically divorcing a legal system from the ethical and moral foundation
of society, is unable to motivate human beings for action or goals for future development. In fact, the anti-
semitic edicts of Nazis, the immoral apartheid practices contained in South African law and the neo-
politico-cultural nationalism in India are the product of the sensibility of positivist theory. Positivist
philosophy has been able to justify obedience to iniquitous and immoral laws such as Nazi Nuremberg
laws on racial purity.

Legal Realism: The Sociological approach to process and interests

Legal realists’ major concern is to discover not what law ought to be or what law is, but what law does.
The legal realist argued that there is no general theory of rights as such rather they act as an important
instrument in the study of the processes and interaction of policy, law and legal institutions. Rights, then,
might emerge as the end- product of such a process of interaction, thereby reflecting the prevailing moral
values of society at any given time. Karl Llewellyn and Roscoe Pound, the foremost among the legal
realists, provided a sort of 'snapshot' of rights as a temporary manifestation of an ongoing process.

The problems of legal realists are that they are unable to identify ‘goals’, 'ends', 'purpose' of rights thus
rendering coherency and interconnections of rights in relation to rights inter-se and societal goals
meaningless. Pound' s ‘Social Engineering'- ordering of human relations through politically organized
society so as to secure all interest insofar as possible with the least sacrifice of the totality of interests - is
'descriptive science in the social field' and deficient in assisting nonnative enquiry.

Anti-Utilitarianism

Utilitarianism gave little thought to minorities or communities or individuals within a state whose
preferences are not represented by the majority and who may, in consequence, be severely disadvantaged
or, in rights talk, deprived of their rights.

Socio-cultural minorities, for instance, homosexuals and lesbians, whose practices are forbidden, would
not be able to make an agreement to gainsay the utilitarian position since, as a minority their preference
would have to give way to the wishes of majority. The tendency of a "tyranny of majority" is inherent in
utilitarian theory and in a pluralistic, democratic state such a position would be untenable. Much of
modern political theorists, therefore, have a strong anti-utilitarian focus.

A large variety of presentation and analyses among neo-scholastic rights oriented scholars have set the
major debate on normative rights theory. Three prominent political tradition namely liberal
communitarian debates, theories of group entitlements and theories of recognition (politics of identity)
have momentous ramifications for the way in which we organize our relationship with each other in
society and in polity.

(a) Liberal communitarian debate

Liberals and neo-liberals take the 'inencumbered' (free and unhindered) individuals as the unit of political
arrangements and appear to conclude that a minimum absolute or core postulate of any just system of
rights must include some recognition of the value of individual freedom or autonomy. John Rawls and
Alan Gewirth build on Kant's intuition that the central focus of morality is personhood, namely the
capacity to take responsibility as a free and rational agent for one's system of ends. Rights, therefore, flow
from the autonomy of the individual in choosing his or her ends or natural necessity prescribing a
minimum definition of what it means to be human society. Justice as necessity and as fairness is the first
virtue of social institutions, says Rawls. Principle of justice provides a way of assigning rights and duties
in the basic institutions of society. Human rights therefore, are an end of justice. Nozick regards state as
"watchdog" whose work is not to impose burdens or restrictions upon some citizens to meet the needs of
others, however great those need be. If it does, it deprives citizens of their liberty in violation of their
natural rights. This is a crass barren morality as what it means to be human also includes freedom from
discrimination, hunger and homelessness since such rights also go to the essence of living.
Mc Dougal, Laswell and Chen have constructed comprehensive system of human rights following what
they call a value-policy oriented approach based on the protection of human dignity. A basic value such
as dignity - a value on which most people would agree - can be a springboard for structuring a right
system. Ronald Dworkin proceeds from the postulate of political morality, i.e. that governments must
treat all their citizens with equal concern and respect. In the absence of such "premise" there lacks a thesis
for any valid discourse on rights and claims. Dworkin’s theory tries to retain both, the benefits of rights
theory without the need for an ontological commitment and the benefits of utilitarian theory without the
need to sacrifice basic individual rights.

Michel Sandel, a communitarian, believes that human beings acquire their conceptions of good from
their community. This happens because self is constituted by the community of which an individual is a
part. Communitarians argue that political community should seek to realize the sets of common goals and
purpose that already shape the ties of association among the citizens and the politics of good, rather than
the rights preceding notions of good, must be practical. However, communitarians are unable to answer
when asked; what is the role of individual when community prescribes unethical norms and ends such as
genital mutilation. How can individuals’ creativity, motivation, and imagination find space in
communitarianism?

(b) Group Entitlements

Liberals and communitarians fail to grasp the recognition of the value of community and for the minority
rights. Will Kymlicka developed a theory that combines liberalism and minority rights and kind of
supports inclusive universality. KymLicka's argument helps us to (a) recognize the value of community,
(b) recognize that groups are unequally located and, therefore, understand the need to protect the rights of
minority groups, (c) temper the commitment to community with a commitment to the values of liberal
democracy, and consequently, (d) establish a case for the protection of minority rights from within liberal
democratic theory.

(c) Politics of identity

The struggle for recognition is the struggle for approval and respect of others in order to develop self-
esteem, self-confidence and self-respect. The connection between identity and recognition originates in
the fundamentally dialogical character of human life: we define our identity always in dialogue with,
sometimes in struggle against, our significant others. Charles Taylor’s famous essay "The Politics of
Recognition” has two distinct meanings; first, a politics of universalism and equal dignity, tending
towards the equalization of rights and entitlements. And second, growing out of the politics of equal
dignity, a politics of difference tending towards the recognition of everyone's unique identity. Jürgen
Habermas, in response to Taylor's "The Politics of Recognition", arguing within the framework of the
constitutional state, makes a few points bearing affinity with the concept of 'inclusive universality' of
human rights.

The idea that true universality i.e. the inclusion of all group and individuals in human rights protection,
does not require uniformity of standards, but rather its opposite - a contextual flexibility of standards. In
his view, “a politics of recognition that protects the integrity of the individual in the life contexts in which
his or her identity is formed" requires" the consistent actualization of the system of rights".
Marxism

Marxist theory views men and women not of individuals with rights developed from either a divine or
inherent nature, but of men and women as 'specie beings’. Marx regarded the 'law of nature' approach to
rights as 'idealistic' and 'ahistorical'. Rights, for him "were simply bourgeois concepts and a product of
bourgeois capitalist society, designed to maintain and reinforce the pre-eminent position of the ruling
class. Rights concepts are historical categories whose content is determined by the material condition of
the life of the people and by social circumstances. The essence of an individual is that of a social being
who has the potential to use one's abilities to the fullest and to satisfy one's need. In capitalist society
production is controlled by a few, such a society cannot satisfy those individual needs. An actualization of
potential is contingent on the return of men and women to themselves as social beings in a society devoid
of class conflict.