Narajole Raj College
Chapter : IV
The Universality of Rights a) Natural Rights b) Moral and Legal Rights c) Three Generations of Rights d) Rights and obligations
Teaching Plan : Subject – Political Science (CC), 2
ndSem, C3T
Important issue : Rights of the Girl Child
Instructor : Rajasree Debnath, Associate Professor, Dept. of
Political Science, Narajole Raj College, Paschim Medinipur
The Universality of Rights
The Universal Declaration of Human Rights was adopted and proclaimed by the General Assembly of The United Nations on December 10, 1948.
But as we live in a world of diversity i.e. of different languages, race cultures, religions - the question arises How Rights could be universal? Or What is the actual meaning of Universality of Rights?
Article 1 of the UDHR states, “ All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
Article 2 of the UDHR declares, “ Everyone is entitled to all rights and freedoms set forth in this declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
All the 30 Articles of the UDHR stating different rights clearly declare that everyone is entitled to enjoy all the rights. Some Rights like Right to Life, Liberty, Food, Health, Housing, Education etc. can never be discriminatory, all are entitled to enjoy these Rights.
The Record shows that the UDHR is a distillation of many different cultural, legal and religious beliefs. In 1993,the World Conference on Human Rights noted that , “ it is the duty of States, regardless of their economic and cultural systems, to promote and protect all human rights.”
Human Rights are also indivisible. As all civil and political rights and socio- economic and cultural rights must be treated equally. All these rights are interrelated and interdependent.
There is now international and cross-cultural agreement that all people have some rights simply because they are people.
Definition and Classification of Rights
Definition of Rights: The concept of Rights is as old as the human civilization. But there is no all-accepted definition of Rights. As the Scholars define Rights from their own views. Some of the definitions of Rights are as follow
“Rights arise from the fact that man is a social being.” Gilchrist
“ A Right is a claim recognized by the society and enforced by the State.” Bosanquet
“ Without society conscious of moral interests, there can be no rights.” T.H.Green
“ Genuine rights are conditions of social welfare and the various rights own their validity to the functions they perform in the harmonious development of society.” Hobhouse
The abovementioned definitions clearly show that rights can be explained from different angles and from such different angles classifications of Rights are made.
Natural Rights
Moral and Legal Rights
Social, Political or Civil Rights
“ Rights, in fact, are those conditions of social life without which no man can seek, in general, to be himself at his best.” Harold Laski
Natural Rights
Tenets of the doctrine of Natural Rights:
1. Rights are natural, men are born with some rights 2. These rights are inalienable
3. Execution / implementation of these rights does not depend on authority
4. These rights are pre – social and pre – political 5. State can not and should not seize these rights 6. These rights are eternal and inevitable
7. These rights are ultimate and unconditional
8. Everybody can enjoy these rights i.e. these are universal 9. Recognition of the state
10.is not necessary for these rights
11.These rights are state – neutral by all means
Proponents of the doctrine of Natural Rights: The doctrine of Natural Rights was evolved in ancient Greece and Rome but it was developed during the Seventeenth and Eighteenth Century.
Thomas Hobbes, John Locke, Jean Jacque Rousseau, Thomas Paine, Jeremy Bentham, Spencer, Harold Laski are the eminent proponents of Natural Rights.
According to them, some of the Natural Rights are i) Right to Life, ii) Right to Liberty, iii) Right to Property, iv) Right to Security, v) Right to
Resistance, vi) Right to Equality, vii) Right to Freedom of Speech, viii) Right to proper Education, ix) Right to Self –Government, x) Right to form
Association etc.
Criticism: The doctrine of Natural Rights became very popular but it was not beyond criticism. Scholars criticize the doctrine from different angles.
1. Rights can never be society and state – neutral, As Bosanquet says, “ A right…..is a claim recognized by society and enforced by the State.
2. The term Natural Rights has no all accepted meaning, it is not clear and indefinite also.
3. No rights can be eternal ,
4. Any absolute and indefinite right leads to anarchism and indiscipline 5. According to the Marxists , it is unscientific.
Evaluation: In spite of these limitations, doctrine of Natural Rights contributes a lot in the history of mankind. It inspired the exploited and deprived people to fight against exploitation, oppression and injustice. It definitely gives rights an universal and progressive character. No one can deny these rights for the uplift and welfare of every individual. The Bill of Rights of the United States of America states, “ Men are endowed by their creators with certain inalienable rights.”
Moral and Legal Rights
Tenets of the doctrine of Moral Rights:
From the traditional view point, a Moral right is that, which is based on the ethical code of morality of the people, that is, what we think ought to be our rights. It extends, over the field of conduct and refers to all those actions and forbearances which it is our moral duty to perform. But a moral right is not supported by the Laws of the State. According to this doctrine,
1. Rights are originated from the society,
2. Society recognize the rights for the welfare of the people, 3. Rights are interrelated with duties,
4. It is the duty of the Society to help each and everybody for their self- development,
5. Rights should be inconsistent with the development of the society as well as individual.
Now-a-days, Moral rights means the rights of creators of copyrighted works generally recognized in civil law jurisdictions and to a lesser extent, in some common law jurisdictions. Though France and Germany were the first states to take measures on the modern moral rights but the Berne Convention for the Protection of Literary and Artistic work (1928) is considered as the guiding document of Moral rights. It accepted two forms of moral rights; i) paternity and ii) integrity (Article 6bis). According to the Paternity Act, the right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work and the creator of a work has the right to be identified as its creator.
According to the Universal Declaration of Human Rights ( Article 27 ), Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Relevance of Moral Rights : Rights are created as per the need of the people. In modern age plagiarism emerged as a critical problem in almost all countries and to combat this problem, affected persons need the rights like Moral rights. Through moral rights, efforts have been taken to stop plagiarism and to protect the rights of the writers, artists and such other people. The United States of America, People Republic of China, India and many other countries enacted Laws to protect the rights of the creators.
Moral rights in India: The copyright act, 1957 provides copyright protection in India. It confers copyright protection of i) Economic rights of the author and ii) Moral rights of the author. Under section 57of Indian copyright, an author has the right to claim the authorship of the work. He has also right to for restraining the infringement or to claim damages under section 55 [xvi]. The special protection of the copyright can be claimed eve after the assignment of the copyright.
Ref: The moral rights of an author by Nidhi kumari, lawctopus.com https://www.lawctopus.com>moral
Legal Rights
Tenets of Legal Rights: “ A right is a claim recognized by society and enforced by the State.” Bosanquet. Like Bosanquet, other proponents like Austin,
Bentham, Ritchie, Solmond argue that
i) Rights are the claims recognized and protected by the State,
ii) Men can enjoy rights only because he is a member of the society, iii) Right is entirely a social-concept,
iv) There can be no rights outside the society, v) Rights are not eternal and natural in nature,
vi) Rights are neither pre-State nor state-neutral issue vii) Rights are fruits of law and law alone…Bentham
Criticism: Doctrine of Legal Rights is not free from criticism. It is criticized from different angles. Like
1. Doctrine of Legal Rights is incomplete because it is not related with the question of social values i.e. what ought to be or not,
2. H. Laski criticized this doctrine by saying, “ The State briefly, does not create, but recognizes rights.”
3. Individual, not only as a member of the State but enjoys rights, as a member of many social institutions, like family club, religious groups etc.
4. Men have no rights against the State is not true, as Men also do have the right to resistance,
5. According to the Marxists, in a class-divided society, a majority of people are deprived from fundamental rights, as the State act as the organ of class- rule.
Evaluation: The doctrine of Legal Rights ,no doubt, contributed a lot to give a clear and scientific explanation of Rights. Rights without Laws is difficult to enjoy and ensure in a modern and complicated society.
Rights and Obligations
The relationship between rights and obligations:
Scholars are divided on the issue of rights and obligations. From the point of view of the origin of the Law, it is argued that citizens are bound to obey the State. But Scholars like John Locke, T.H.Green, E.Barker, H. Laski and others supported the citizens’ right to resistance.
Source of Law and reason for obligation:
Divine theory of Law > king is the representative of God > king’s order to be obeyed
Social contract theory > law is the outcome of contract > violation of law is violation of contract
Utilitarianism, Idealism, Liberalism advocate obedience to law from different angles
Modern States also proclaim obedience to law as citizens’ duty.
Right to Resistance:
Sophists philosophers in ancient Greece supported the right to resistance
John Locke advocates conditional protest of the citizens against the State
T.H. Green argued citizens might disobey unethical law for the sake of the State
E. Barker opined if the failed to establish a just society, then citizens should disobey the State
H. Laski advised to disobey the law if they were not justified
Concluding Remarks: To establish a well-organized society, to ensure security of life and property, law is necessary, but law has to be just and aimed at the betterment of all. If law failed to fulfill this aim, citizens may disobey the law . Gandhiji also admitted right to resistance as the ethical duty of the Citizens. Now it is almost all-admitted that obedience to law is not and should not be unconditional.
The Constitution of independent India, Article 24 provides that in no case a child below 14 may be employed in work in any factory or mine, or engaged in other hazardous employment and Article 39 (f) provides protection to children and youth against exploitation and moral and material abandonment. These constitutional provisions have least impact in reality
Acts to protect the rights of girl child: The Government of India expresses her concern for the betterment of girl child. To uplift their condition, to ensure their rights, to protect their lives , several Acts have been made.
Some of those are,
The Immoral Traffic in women (Prevention) Act, 1956 The Dowry Prohibition Act, 1961
The Medical Termination of Pregnancy Act, 1971
The Child Marriage Restraint (Amendment) Act, 1976
The Pre-Natal Diagnostic Techniques (Regulatory and Prevention of Misuse) Act,1994 etc.
Rights of the Girl Child
General status of Girl Child : It is said that baby is the best blessings of all, but it is not applicable for hundreds of millions of girls who have to live miserable, painful and intolerable life. From the womb to tomb, they are not safe. Specially in developing countries like India, problems faced by girl children are not only critical but alarming too.
The Universal Declaration of Human Rights (1948) proclaims that Motherhood and childhood are entitled to special care and assistance.
All children, whether born in or out of wedlock, shall enjoy the same equal protection but the situation is unchanged.
In ancient and medieval India, girls children used to face severe inhuman condition. Child Marriage, Practice of Sati, Polygamy etc.
destroyed the rights of them.
No doubt, enactment of laws are helpful to combat the grave situation.
But we have to keep in mind that mere enactment of laws is not enough, many more socio-economic and welfare programs are to be initiated and implemented. ’Beti Bachao, Beti Padhao Yojana’( Save the Girl ,Educate the Girl) , the program of the Govt. of India and the ‘Kanyashree’ of West Bengal government are so far proved effective to uplift the condition of the girls in India and appreciated by the world.
