HUMAN RIGHTS THEORY: FIVE PERSPECTIVES

1) INTRODUCTION

Human rights are one of the significant features of our political

reality. It is the moral rights of highest order.1Human Rights are evolved out of self
respect. It is Inherent to all humans without any discrimination of race, sex
nationality, ethnicity, language, religion and colour etc. It received new shape when
human beings began to think themselves. Bach and every human beings are entitled
to these rights without any discrimination.

2) THE ORIGINS OF HUMAN RIGHTS

Human rights are not a recent invention.

Throughout history, concepts of ethical behavior, justice and human

dignity have been important in the development of human societies. These ideas can
be traced back to the ancient civilisations of Babylon, China and India. They
contributed to the laws of Greek and Roman society and are central to Buddhist,
Christian, Confucian, Hindu, Islamic and Jewish teachings. Concepts of ethics,
justice and dignity were also important in societies which have not left written
records, but consist of oral histories such as those of Aboriginal and Torres Strait
Islander people in Australia and other indigenous societies elsewhere. 

Ideas about justice were prominent in the thinking of philosophers in

the Middle Ages, the Renaissance and the Enlightenment. An important strand in
this thinking was that there was a 'natural law' that stood above the law of rulers.
This meant that individuals had certain rights simply because they were human
beings.

In 1215, the English barons forced the King of England to sign Magna
Carta (which is Latin for ‘the Great Charter’). Magna Carta was the first document

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to place limits on the absolute power of the king and make him accountable to his
subjects. It also laid out some basic rights for the protection of citizens, such as the
right to a trial.

Significant development in thinking about human rights took place in

the seventeenth and eighteenth centuries, during a time of revolution and emerging
national identities. 

The American Declaration of Independence (1776) was based on the

understanding that certain rights, such as ‘life, liberty and the pursuit of happiness',
were fundamental to all people. Similarly, the French Declaration of the Rights of
Man and the Citizen (1789) challenged the authority of the aristocracy and
recognised the ‘liberty, equality and fraternity' of individuals. These values were
also echoed in the United States’ Bill of Rights (1791), which recognised freedom of
speech, religion and the press, as well as the right to ‘peaceable' assembly, private
property and a fair trial.

3) THE DEVELOPMENT OF MODERN HUMAN RIGHTS

The nineteenth and early twentieth centuries saw continuing

advances in social progress, for example, in the abolition of slavery, the widespread
provision of education and the extension of political rights. Despite these advances,
international activity on human rights remained weak. The general attitude was that
nations could do what they liked within their borders and that other countries and the
broader international community had no basis for intervening or even raising
concerns when rights were violated. 

This is expressed in the term ‘state sovereignty’, which refers to the

idea that whoever has the political authority within a country has the power to rule
and pass laws over that territory. Importantly, countries agree to mutually recognise
this sovereignty. In doing so, they agree to refrain from interfering in the internal or
external affairs of other sovereign states. 

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 However, the atrocities and human rights violations that occurred
during World War II galvanized worldwide opinion and made human rights a
universal concern. 

World War II onwards

During World War II millions of soldiers and civilians were killed

or maimed. The Nazi regime in Germany created concentration camps for certain
groups - including Jews, communists, homosexuals and political opponents. Some
of these people were used as slave labour, others were exterminated in mass
executions. The Japanese occupation of China and other Asian countries was
marked by frequent and large-scale brutality toward local populations. Japanese
forces took thousands of prisoners of war who were used as slave labour, with no
medical treatment and inadequate food.

The promotion and protection of human rights became a

fundamental objective of the Allied powers. In 1941, U.S. President Roosevelt
proclaimed the 'Four Freedoms' that people everywhere in the world ought to enjoy -
freedom of speech and belief, and freedom from want and fear. 

The war ended in 1945, but only after the destruction of millions of
lives, including through the first and only use of atomic weapons at Hiroshima and
Nagasaki. Many countries were devastated by the war, and millions of people died
or became homeless refugees.

This new organisation was the United Nations, known as the

UN, which came into existence in 1945. As the war drew to a close, the victorious
powers decided to establish a world organisation that would prevent further conflict
and help build a better world.

4) A Brief Human Rights Timeline1

1
https://www.humanrights.gov.au/education/students/get-informed/brief-human-rights-timeline

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1) 1760 BCE: In Babylon King Hammurabi draws up the ‘Code of Hammurabi’,
an early legal document that promises to ‘make justice reign in the Kingdom and
promote the good of the people’.
2) 528 BCE - 486 BCE: In India, Gautama Buddha advocates morality, reverence
for life, non-violence and right conduct.
3) 500 BCE: Confucian teaching develops based on 'jen' or benevolence and respect
for other people.
4) 27 BCE - 476 CE: Roman Empire develops the concepts of natural law and the
rights of citizens.
5) 26 - 33 CE: In Palestine, Jesus Christ preaches morality, tolerance, justice,
forgiveness and love.  The Christian New Testament teaches equality before God:
'In Christ there is neither Jew nor Greek, slave nor free, male nor female'.
6) 613 – 632: In Saudi Arabia, Prophet Mohammed teaches the principles of
equality, justice and compassion revealed in the Qurrān.
7) 1215: Britain's King John is forced by his lords to sign the Magna Carta,
acknowledging that free men are entitled to judgment by their peers and that even
a King is not above the law. It also stated that taxes could not be demanded
without first obtaining the consent of ‘the realm’.
8) 1583 – 1645: Hugo Grotius, Dutch jurist credited with the birth of international
law, speaks of brotherhood of humankind and the need to treat all people fairly.
9) 1689: In England, Parliament adopts the Bill of Rights that curtails the power of
the monarch and includes freedom from torture and from punishment without
trial. The Bill sets out that it is the job of government to represent the people and
their rights.
10) 1776: US Declaration of Independence proclaims that 'all men are created
equal' and endowed with certain inalienable rights.
11) 1789: In France the National Assembly adopts the Declaration of the Rights of
Man and of the Citizen, which guarantees the rights to liberty, equality, property,
security, and resistance to oppression.
12) 1791: The United States Congress adopts their Bill of Rights, amending the US
Constitution to include rights to trial by jury, freedom of expression, speech,
belief and assembly.

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13) 1833: The British Parliament abolishes slavery through the Slavery Abolition Act.
14) 1945: The United Nations is created ‘to affirm the dignity and worth of every
human person’.
15) 1948: The United Nations adopts the Universal Declaration of Human Rights.
16) 1951: The Convention Relating to the Status of Refugees ('The Refugee
Convention') is adopted and opened for signature. It defines who a refugee is and
what the rights and legal obligations of states are in relation to them.
17) 1965: The Convention on the Elimination of All Forms of Racial
Discrimination (CERD) is adopted and opened for signature. It is introduced to
eliminate racial discrimination and promote understanding among all races.
18) 1966: The International Covenant on Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social and Cultural Rights (ICESCR)
are adopted and opened for signature.
19) 1979: The Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) is adopted and opened for signature. It is introduced
to prevent discrimination against, and to promote the rights of, women.
20) 1984: In Australia, the Sex Discrimination Act comes into force.
21) 1984: The Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment is adopted and opened for signature.
22) 1986: In Australia, the Human Rights Commission Act is enacted, which
establishes a national human rights commission, today known as the Australian
Human Rights Commission.
23) 1989: The Convention on the Rights of the Child is adopted and opened for
signature.
24) 1992: In Australia, the Disability Discrimination Act comes into force.
25) 2004: In Australia, the Age Discrimination Act comes into force.
26) 2006 – 2007: The Convention on the Rights of Persons with Disabilities is
adopted (2006) and opened for signature (2007).
27) 2007: The Declaration on the Rights of Indigenous Peoples is adopted by the
United Nations in 2007, and the Australian Government announced its support for
the Declaration in 2009.
28) 2011: The United Nation adopts the United Nations Declaration on Human
Rights Education and Training.

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29) 2013: The first National Children's Commissioner is appointed in Australia.

WHAT IS HUMAN RIGHTS?

In short, it is the basic rights and freedom of all human, it include the
right to life, liberty, freedom of thought, expression and equality before the law. It is
interrelated, interdependent and indivisible. There are several theories which are
relevant to the concept of human rights such as,

1) Theory of Natural Rights

2) Theory of Social Rights
3) Theory of Legal Rights
4) Theory of Historical Rights
5) Theory of Economics Rights

1) THEORY OF NATURAL RIGHTS

It states that an individual enters into society with certain basic rights
and no government can deny these rights 2.The natural rights evolved out of the
natural law that peoples are the creatures of nature. They exist their lives and
organize their society on the basis of rules and principles laid down by nature. When
the idea of individualism developed in the 17th century, theory of natural law were
modified and focussed on the rights of the individuals 3. It cannot be violated by
anyone or by any society because they are natural beings. Therefore we can clearly
say that today’s human rights are the child of ancient natural rights.

Jean Jacques Rousseau attempts to settle the natural rights of the

individual with the need for social unity and cooperation through the idea of the
social contract. Rousseau declared that natural law conferred inalienable sovereignty
on the citizens of the state as a whole. The most significant details of idea of natural
rights came from the writings of Thomas Jefferson, Samuel Adams and Thomas

2
Amartya Sen Elements of Theory of Human Rights, Philosophy and Public Affairs, Research Library Core,
2004.
3
Dnnelli, D, Harward R, Human Rights in Modern World, USA 1991

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Paine made the natural rights theory a powerful justification for revolution.
Positivists strongly oppose these theory because they gave importance to society not
for individual rights.

2) THEORY OF SOCIAL RIGHTS

The theory of Social rights states that rights are the conditions of
society. It is the creation of society, law, customs, traditions and yield to what is
socially useful or socially desirable4. What is socially useful should have for its test
the greatest happiness of the greatest number. The real advocators of this theory was
Bentham and Mill. They established the principle of greatest happiness of the
greatest number and made it for the measure of utility. But utility should be
determined by considerations of reason and experience according to them.

Laski accepts utility as the basis of rights. He agreed that the test of
right is utility and the utility of a right is its value to all the members of the State.
Rights are not independent of society, but inherent in it. One's rights are built upon
one's contribution to the well-being of society Rights are built upon their utility to
the individual and the community Utility is the measuring rod of a particular right
The theory has its appeal in the sense of justice and reason.

3) THEORY OF LEGAL RIGHTS

According to this theory rights are created and maintained by the

state. The state is the only source of right and outside the state an individual has no
rights at all and never claim rights against state. The theory further maintains that
rights are not natural to man. The political pluralists object this theory, because the
state does not create rights but it only recognizes them. One of the main exponents
of this theory was Austin.

There are lot of criticism about this theory because it does not
provide an adequate basis of right. It might tell us the character of a particular state

4
Lewellyn - ones, Lloyd (2009) “The First Persian Empire 550-330 BC”, In Harrison Thomas. The great empires
of the ancient world. Getty Publications. p104

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but it does not tell us what rights need recognition. This theory will lead to despotic
state and tyranny of laws. It does not provide a basis to know what right ought to be
ensured. Rights are in fact not what the state grants what the man needs for his self-
development and what the state should grant.

4) THEORY OF HISTORICAL RIGHTS

According to this theory, rights are the product of history and

originate in its customs which passed from one generation to another. It gives
emphasis to custom. They are considered fundamental to the growth and
development of man, because they are maintained by a long unbroken custom and
the generations have habitually followed them.

The scholar Burke maintains that the French Revolution was based
on the abstract rights of man, whereas the Glorious Revolution of England was
based on the customary rights of the people of that country.

There is much truth in what Burke says because the French

Revolution itself was the result of the prevailed conditions of that country but its
slogan was liberty, equality and fraternity 5.These three abstract principles were
universally applied.

On the other hand, the Glorious Revolution was simply a

reaffirmation of the historic liberties of English, had their heritage since the days of
the Anglo-Saxons. It found due expression in Magna Carta, Petition of Rights and
various other documents of constitutional importance.

It is to note that many of our rights are really originated in our

primitive customs. At the same time it does not mean the origin of all rights can be
traced to customs and traditions. When rights are rigidly tied to customs alone, we
entirely ignore the dynamic nature of society and the changing capacities of rights.
Rights change with the facts of time and place.

5) THEORY OF ECONOMIC RIGHTS

5
Burke, Edmand. Reflections on Revolution in France. Ed. Conor Cruise O’Brien. New York: Penguin Books,
1986

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 It finds its inspiration in the teaching of Karl Marx. It rejects the
concept of natural and other rights, stated from time to time as an explanation of the
nature of rights.

Marx’s idea is simple and even convincing too to certain extent.

According to him the State is powerful agency to uphold the particular type of social
organisation and law is a tool of the State that preserves and safeguards the interests
of the dominant group in the society6.

He explained that political, social, religious and other institutions

are determined by economic components, which is essentially the mode of
production. To each stage of production in the development of society corresponds
as appropriate political form and an appropriate class structure. Every system of
production leads to the rise of two opposite classes - - the exploiters and the
exploited.

The laws are so made and the policies of the governing class are
so devised and formulated that they protect the interests of this group alone.
Consequently, the dogmas of equality before the law and other fundamental rights of
the people are only a cloak of inequality, i.e. slavery. Rights are, as such, neither the
product of human nature nor their origin can be traced to the ancient customs, or in
their inherent utility, nor are rights the result of external conditions essential to man's
internal and real development.

Human Rights According to UDHR

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https://www.slideshare.net/sadishp/theories-of-human-rights-full-paper

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 According to UDHR some human rights are listed in below namely;

1) Article 1 Right to Equality

2) Article 2 Freedom from Discrimination
3) Article 3 Right to Life, Liberty, Personal Security
4) Article 4 Freedom from Slavery
5) Article 5 Freedom from Torture and Degrading Treatment
6) Article 6 Right to Recognition as a Person before the Law
7) Article 7 Right to Equality before the Law
8) Article 8 Right to Remedy by Competent Tribunal
9) Article 9 Freedom from Arbitrary Arrest and Exile
10) Article 10 Right to Fair Public Hearing
11) Article 11 Right to be Considered Innocent until Proven Guilty
12) Article 12 Freedom from Interference with Privacy, Family, Home and
Correspondence
13) Article 13 Right to Free Movement in and out of the Country
14) Article 14 Right to Asylum in other Countries from Persecution
15) Article 15 Right to a Nationality and the Freedom to Change It
16) Article 16 Right to Marriage and Family
17) Article 17 Right to Own Property
18) Article 18 Freedom of Belief and Religion
19) Article 19 Freedom of Opinion and Information
20) Article 20 Right of Peaceful Assembly and Association
21) Article 21 Right to Participate in Government and in Free Elections
22) Article 22 Right to Social Security
23) Article 23 Right to Desirable Work and to Join Trade Unions
24) Article 24 Right to Rest and Leisure
25) Article 25 Right to Adequate Living Standard
26) Article 26 Right to Education
27) Article 27 Right to Participate in the Cultural Life of Community
28) Article 28 Right to a Social Order that Articulates this Document
29) Article 29 Community Duties Essential to Free and Full Development
30) Article 30 Freedom from State or Personal Interference in the above Rights

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 PERSPECTIVES ON HUMAN RIGHTS

In order to point to the academic void in the research on the

universality of human rights it is necessary to set the stage by categorizing the
different perspectives on how to approach human rights. Whatever approach you
follow, they all ground in an empirical problem, meaning that the reason for their
appearance can be traced back to a concrete threat to human beings, to their dignity
or freedom, in human history. Haller (2013, p 29) describes it as follows:

"Human rights are negatively oriented towards the real conditions. If

human rights theories are proposed and philosophically backed, the reason for its
proposal is always an unsatisfactory reality, a painful experience of an affront to
human dignity.”

1) Moral perspective

Based on the negative reality as described above an ideal counterpart

has been developed: a normative moral perspective on human rights. Tonnies (2001,
p 11) clarifies, that this perspectives displays what ought to be and not what is; it
cannot be justified scientifically (understanding the term in a narrow and quasi-
natural scientific way). Consequently, the moral perspective is an imaginary,
normative ideal. Amartya Sen emphasizes that this is the primary character of
human rights:

"They (human rights, L.W.) are not principally 'legal, 'proto-legal' or

'ideal-legal commands. Even though human rights can, and often do, inspire
legislation, this is a further fact than a constitutive characteristic of human rights."
(Sen 2004, p 319)

Human rights as moral rights are independent of their legal implementation. (cf.
Haspel 2005,p

2) Dignity perspective

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 The term dates back to ancient Greece (Haller 2013, p 10) but is
firmly in focus of the moral human rights approach only since the enlightenment.
Immanuel Kant defined dignity as follows:

Despite its unclear definition and highly debated benefit, the term
"dignity" can be found in nearly every declaration of human rights and often serves
as final justification for debates about contested human rights. In fact, it seems to be
a construction that is needed to circumnavigate a closely related question: What it is,
we human beings have in common that no other creature has?

3) Political perspective

Inspired by the normative ideals developed within the moral

approach, the political perspective transfers theory into practice. The results emerge
from a concrete process based on negotiations between contracting parties.

"Instead of seeing human rights as grounded in some sort of

independently existing moral reality, a theorist might see them as the norms of a
highly useful political practice that humans have constructed or evolved. Such a
view would see the idea of human rights as playing various political roles at the
national and international levels and as serving thereby to protect urgent human or
national interests." (Nickel 2013, p 7)

Nickel describes human rights here as a political practice. One

should be more concerned about an actual list of human rights adopted by political
representatives than of its moral foundation.

The idea behind this approach is, as Menke and Pollmann (2007,
pp 31-33) sum up, that moral rights are obligations single human beings are liable
to. Human rights, however, are obligations political representatives in charge of the
public order are liable to.

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 Two of the most famous theorist of justice and human rights, John
Rawls and Charles Beitz7, opt for a political conception of human rights by dealing
with the topic only as far as it has developed in contemporary human rights practice.

This approach limited to the political dimension implies the basic

belief "that a person can accept and use the idea of human rights without accepting
any particular view about their foundations. [... It is] about the practical use that
human rights do, not their reflection of some underlying moral reality." (Nickel
2013, p 17) From this perspective, human rights are a concrete catalogue which is
the outcome of an international exchange.

4) Legal perspective

Whereas the UDHR is only a declaration stating a common will

and is not legally binding, it has served as foundation for the following two UN
human rights covenants, which are actually legally binding: the International
Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights both adopted in 1966. All legally binding conventions -
be it the seven UN conventions following the two covenants as well as the optional
protocols or the treaties established by different regional human rights regimes are
steps toward a legally binding human rights regime. Only by codifying human
rights, the political will and the rights written down in the declarations can actually
be commanded on the ground:

"Human rights, in a strict sense, are understood as rights that are

defined by the fact that they are enshrined (codified) in a legal manner and can in
principle also be enforced. Claims become human rights only through their
codification according to the principle of legality."8

However, even codified laws hardly make a difference if they're

not backed by juridical and executive bodies that can finally enforce rights. Europe
and America established regional human rights courts, but most regions, covering
the majority of human beings (and human rights violations), have no bodies to

7
Nickel (2013) and Koenig (2005) refer to Rawls and Beitz concerning the political concepts; Menke and
pollmann (2007) refer to Rawls.
8
Haspel 2005, p 20

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enforce human rights let alone an international court for human rights to enforce the
internationally binding treaties).

“HUMAN RIGHTS AND ITS FIVE PERSPECTIVES”

1) A SPECIES OF EVOLVING LEGAL REGIMES AT NATIONAL,

INTERNATIONAL, REGIONAL, AND OTHERS LEVEL.
International regime hard law- binding conventions; soft law–
UDHR, principles; regional arrangements, E-conventions on HR; African
charter on HR.
Domestic – Bill of rights, other legal instruments, involving
diffusion of ideas, models, institutions, practices.
Within the jurisprudence of HR law distinguish, juristic mega
theories, legislative theories, interpretive theories and empirical theories.

2) SUBSTANTIVE AND MORAL THEORIES

A set of universal moral standard that apply to all people at all
times and in all places, irrespective of their beliefs. These standard are
sufficiently flexible to allow some leeway for different particularities in
respect of law customs, morals, institutions, but they are rooted in
fundamental values that are shared by all human beings by virtue of being
human.
Theories explicating, interpreting or justifying this seasons are
moral theories.
Distinguish between humanistic and religion based theories
Human Rights without invoking god or religious beliefs.
Rapid increase in Human Rights (int-domestic) has led to
increasing attention being given to the compatibility of Human Rights values
and ideas with belief systems such as Islam and Judaism, that have not
traditionally expressed such values in terms of right.

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3) DISCOURSE THEORIES
For those who accept deeply rooted diversity of beliefs as a fact, a
standard move has been to shift from substantive moral theories, including
theories of rights, into discourse ethics.
Provides framework for arguments, negotiations, articulating, or
making claims.
Sen moral theories of HR not an substantive standard but in the
survivability of rights claims in open public reasons of discussions both
within and across societies it is also attacked over use of Human Rights.

4) SUBALTERN PERSPECTIVES
A body of political ideas and practices, which as emerged not from
abstract theorising nor conscious law making, but from the largely local
experiences of suffering of millions of people and from struggles against
poverty, injustice, colonialism and other forms of deprivation and
oppression.
In subaltern perspectives the true authors of human rights are said
to have been communities struggles social movement anti slavery,
decolonisation, works movement gives voice to and empowers the worst off.

5) A WESTERN COLONIAL AND NEO COLONIAL IDEOLOGY

If the civilization and ethical contribution of China, India the
Muslim world towered over the medieval Europe. It is equally true that the
legacy of the European enlightenment, for our current understanding of rights,
supersedes other influences.

Post world war-2; cold war; civil and public; US/Russian.

Baxi-central themes is that HR discourse has become commodified,

professionalised by technocrats, and sometimes hijacked by powerful groups,
so that it is grave danger of losing touch with the experiences of suffering
and needs of those who should be main beneficiaries the poor and the
opposed.

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 Maintain broad distinctions between HR talk as forms of political
rhetoric, or legal exposition and argument, and as moral discourse.

CONCLUSION

The description of theories of rights express the fact that rights are
originated inherently in human beings. However, it is helpful to the development of
the human beings. Rights are the properties of human beings. It is necessary and
useful for the social development. Human life is upgraded through these rights.
Human rights are not just a product of morality but protect the basic freedom and
well-being necessary for human agency. Human rights represent a social choice of a
particular moral vision of human potentiality, which rests on a particular substantive
account of the minimum requirements of a life of dignity.9

The distinctive focus of each theory results in significant variations

in their lists of specific human rights or the kind of activities humans may indulge
in. Human rights based on subsistence would not include the range of democratic
rights that most liberals argue that an essential element of human rights based on
dignity.

BIBILOGRAPHY

1) J. Dharmaraj, Human Rights, Tency Publication, Sivakasi, 2008.

2) Thomas Paine, “The Rights of Man”, New York: Penguin Books, 1985.
3) Amartya Sen, “Elements of a Theory of Human Rights Philosophy and Public
Affairs”, Research Library Core, 2004
4) Donnelli D, Haward R, "Human rights in modern world”, USA., 1991.

9
Jack Donnelly, opp. Cit. 1989,p.17.

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5) Jack Donnelly, Universal Human Rights in Theory and Practice, Cormell
University Press, 2003 Forsythe.
6) Frederick P, Encyclopaedia of Human Rights, Oxford University Press, New
York, 2009.
7) Nickel, James,ed, "Human Rights". The Stanford Encyclopaedia of
Philosophy, 2010.

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