Legal concept of rights Something which is artificially created by law Not dependent on moral or human or natural law Natural

ral law recognized by nature Moral rights recognized by morals, but both are not institutionalized. Legal rights are protected by a definite mechanism, persons whose moral or natural rights are violated he cannot ensure its protection. Legal rights exist in relation to a corresponding legal duty imposed upon other persons. There has to be a subject matter to exercise the right. The object of the right may be something which is tangible or intangible. Rights come into existence via contract or as law have conferred. Elements of rights 1. Exists on a person 2. Has a corresponding duty imposed upon another person. Duty is the substance of rights. 3. Duty is to act or omission. 4. Rights can be exercised over a thing. 5. Every right has a title. Philosophy and notion of rights Bikhu Parekh: modern Conception of Rights and its Marxist Critique Modern notion of rights is complex and full of contradictions. Therefore it is important to explore the notion of rights in non-western societies and pre-modern societies. Non-west and pre-modern European societies emphasized in the notion of Duties. They took these freedoms for granted and enjoyed them and exercised them without feeling self conscious about them. Classical Athens managed to do away with the concept of right. Romans were the first to articulate the idea of rights. It was associated with justice. Law was associated with rights and justice and not with order. But modern society associated the idea of law with order and not with justice. It is wrong to say that the source of right is law alone, as rights were derived from source like religion, region, community, society etc. Right was also viewed from the point of land. Land played an important role in determining the rights of the people. Drastic change took place in the notion of rights, mostly in the west during the 17the century. The liberal theories started its impact with the introduction of the theory of Individualism. 4major radical changes took place during the 17th century 1. Subject of rights 2. Object of rights 3. Relation between subject and object 4. Place of the right in the moral and political life. 1. Subject of rights The ancient Athens saw man as an integral part of nature and society and believed that man taken together with his land, political rights constituted an individual. The 17the century writers define individual in extremely narrow terms. Each individual constituted a self contained unit. Everything that is outside the outer surface to his skin constituted the external world, and does not form an integral part of his self. Violence is defined in physical terms and not in psychological terms. 2. Object of rights Is that which is capable of being owned by individual, over which right can be exercised.

When individual separated from nature, almost everything became object of rights, which is capable of being owned. The idea of right was just confined to just access or enjoyment of rights. 3. Relation between subject and object of Rights There are 8 different ways this 3rd notion can be understood. 1. Rights as a claim: it is enjoyed not because others allowed or at others will but because which others ought to recognize and respect. 2. Claim has a nature of Title: it is not arbitrary but based on established procedures. In modern societies rights are derived from titles. 3. Title conferred by established legal authority: the only source of right is an established legal authority and not granted by customs or religions, unless it is recognized by some established legal authority. 4. To have a right is to be free to do what one like with conformity with the condition of its grant: the boundaries of the rights are even determined by law, the limits or extents of rights are determined by law. 5. To have a right to a thing means not only that one can do what one likes with it is within the legally prescribed limits: it implies that it automatically excludes other from interfering with the object over which the right is exercised. 6. It requires special set of service and imposes hardship on others: when right is conferred on few individuals, others are debarred from interfering on the enjoyment of latters right, and shall contribute to the enjoyment of rights by few. 7. Right is legally enforceable: owners of the right become sharers of power of the state. Therefore they have a share in the exercise of the sovereign power. When a state exercises rights at the cost of others hardship, the sharers of states sovereignty enjoy the power, as the states machinery is available to protect the rights of few people holding power. 8. Since right is a formal title conferred by the state, ones possession of it is not dependent on ones ability to exercise it: the modern right is a strange ontological entity; it exist even when it is not a wordily reality, and one can possess it even if one can do nothing with it. This modern concept of rights is based against those lacking resources to exercise it. It promises them the opportunity that they can rarely enjoy. 4. Place of the right in the moral and political life. Rights acquired enormous importance organizing principle of the society. Rights based system replaced the traditional society based on customs, ethical norms, folklores. The west went through a phase of rapid change. Gradually the eastern societies began to accept the changes. In feudal societies land was determining factor for rights, but with the advent of technology, people started moving from village to cities. Mass migration started giving raise to new forms of habitation. The modern state came into existence, which are characterized by : 1. It is based on formal system 2. Governed by formal law 3. Centralized authority, where it enjoyed the monopoly of violence. State replaced the traditional informal norms of social control to formal control in the form of law.

In the 19th century the focus was shifted from individualism to a welfare needs rights ie positive rights, as there was increase in poverty, discontentment amongst workers etc which lead to the shift of focus to positive rights. Marxist view of Modern concept of Rights According to Marx 2 things determine the capitalist society: 1. Labor power which is the exclusive source of surplus value as such man is reduced to an object or commodity. 2. Monitory Transaction, therefore man has to be viewed as a free willing individual and thus it is a subject. Capitalist society therefore regards man as both an object as all ability of man is capable of being sold as goods in market and therefore it is reduced to a commodity; and a subject as man through his free will relates with other via agreement therefore man in the eyes of law is a subject. It is a conflicting situation. Therefore Marx says that capitalist hold a dualist concept, distinguishing man as a natural man and juristic man. According to Marx, society was earlier communal and egalitarian. Everybody was a consumer and a producer. Technology brought changes. Some who owned technology used labor to produce commodity of which he became the owner by virtue of the capitalist law. It is by virtue of law that ownership of a property is recognized hence private property came into existence and means of production and distribution came into private hands, from which capitalist came into being. In order to resolve the conflict in capitalism which viewed as object and subject, a mechanism of rights & obligation evolved. According to Marx rights are camouflaged, it makes people live in a system where they enjoy, but thats a myth. In a communal society scarcity is replaced by material abundance, and hence there is no need for the institution of right. Criticism Marx was wrongly interpreted. He was never against the notion of rights. He criticized the modern concept of rights used by the capitalist. Once the inherent contradiction in the capitalism is done away with everything will be resolved. Therefore parekh says that Marx thought is capable of evolving an alternative concept of rights. As he died young therefore he could not elaborate his notion of rights. Non-exclusive, non-absolute, non-possessive and non-aggressive rights can be adopted if alternate concept of rights is adopted.

ALLEN BUCHANAN: WHAT IS SO SPECIAL ABOUT RIGHTS? Allens arguments as to why are rights so special: 1. Philosophical approach: rights are valuable in certain defective temporary social conditions. They are not valuable in all kinds of society. Once these defective conditions are removed, rights are not required. 2. Rights are valuable in 2 dominant values ie Equality and Liberty. It is required to balance the 2 values. 6 points, why rights are so essential: 1. It provides strongest protection to individuals and minorities because valid claim of rights trump appeals to what would maximize social utilities. A system of rights can only provide strongest protection, because valid claims of rights override other claims. 2. In a moral or a legal system compensation can only be provided where rights are infringed. Where some harm is inflicted, if there is no right there is no concept of compensation. Compensation can only be provided via rights. 3. Rights enable us to distinguish between those moral principles that can justly be enforced and those that cannot. Through a system of rights, difference can be made. Substance of rights is morality. What morality seeks to provide by a system of rights, a justification is provided. 4. Rights create an idea of entitlement. This idea differs from individual to individual. Any system that lacks the idea of rights, make the individual more vulnerable and leave them at the mercy of others. If there is no right to life, one cannot as a matter of right raise the claim of not to be killed. 5. Rights give dignity and respect to individuals and to fail to respect individual is a grave moral defect. Right to equality is to mean right to equal dignity. 6. The right holder may invoke or waive his right which is a special feature and is more valuable than others. The system of rights gives an option to individual to either invoke or waive his rights. Examination of the 6 points in detail. 1st point: alternate system can achieve same purpose which can be achieved by system of rights. It is possible to protect individuals and minorities by an alternative system of rights, if law evolved a mechanism of Duties. John Rawls, Ronald Dowrkin and Robert Nozick, places a great emphasis on the idea that valid claims of rights at least in the case of rights, take precedence over what would appeal to ensure social justice. 2nd point: it is not necessary that right has to be infringed to get compensation. Even if rights are not infringed, it is the discretion of the law to grant compensation without infringing any rights. 3rd point: it is leading to 4 interpretations: 1. A valid claim of rights of sufficient justification of enforcement. 2. A valid claim of rights constitutes a prima facie case enforcement and is necessary to avoid violations. 3. A valid claim of rights is necessary justified enforcement.

4. Enforcement of a principle is justified only if that principle is a right principle. 4 point: the notion of entitlement adds to the idea that the individual is an independent source of moral requirements if we concentrate on 2 facts: 1. When 1 is not treated as one is entitled or is not accorded what one is owed, one is wrong. 2. If 1 is entitled to something, certain excuses for non-performance are ruled out, which might be acceptable in the case of non-rights based requirements, such as duties of beneficence. th 5 point: persons and beings are different. The difference lies in the fact that humans are rational. Persons are those who have moral agency. Beings are those who have interest but no moral agency. Moral agency is that which is capable of evaluating their interest. 6th point: it focuses on 2 things: 1. Since rights give choice to individuals it makes system more efficient and reduces burden on govt. 2. It is non paternalistic. Individual is not dictated by law. 6th argument is such that it makes rights indispensible and it is special.
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