36 The Supremacy and Normativity of Rights

Nizamuddin Ahmad Siddiqui

AIMS OF THE CHAPTER:

• To gather a theoretical understanding of human rights and understand the beginning of human rights.
• To understand various theories of human rights for instance, put forward by Hart, Hohfeld and Salmond.
• To be able to understand the supremacy and normativity of human rights.

1. Introduction:

Natural rights govern a person the freedom to which one is entitled by virtue of being created in the image of God – a right of personhood. Natural rights are commonly used and are a synonym to human rights, which are greater than the power of government and so cannot be taken by thegovernmentunder any circumstances. All the civilized societies have embraced ideals of justices and civil order. Whether by custom or legislative acts, the success of any social order depends upon the answers to thefundamental question of WHO gets WHAT and WHEN. The acceptance or rejection of those notions, or in other words the rights, by the majority will determine the presence or absence of social conflict.

2. Magna Carta: Human Rights Beginning

The concept of rights arose in societies where the culture was more communitarian i.e. the emphasis on living well together and the natural equality and freedom of human beings gave rise to their collective right to choose those who govern them2.The Magna Carta, the first written instrument of law which governed the rights of the people of England, is also considered to be the earliest expression of access to justice and rule of law in the Common Law Tradition3. Originally issued by King John of England (1199 – 1216) contains 63 clauses but with the time only 3 clauses are in practice today governing the rights in British Constitutionalism4. One defends the liberties and rights of the English Church, another confirms the liberties and customs of London and the towns, but the third is the most popular as this clause gave all free man the right to justice and a fair trial:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed, or exiled or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land….To no one will we sell, to no one deny or delay right or justice”.

Magna Carta has consequently acquired a special status as the cornerstone of English Liberties. This is despite the fact that the vast majority of its clauses have now been repealed, or in some cases superseded by other legislations such as the Human Rights instruments. Magna Cartanonetheless retails enormous symbolic power as an ancient defense against arbitrary and tyrannical rules and as a generator of individual liberties.

3. Human Rights – A Theoretical Understanding:

There are two competing theories as to the nature of rights: one emphasis will or choice; and the other interest or benefit6. The will theory is notably propagated by the eminent scholar Hart7, who subscribed to by those who view the purpose of law as being to grant the widest possible means of self – expression to the individual, the maximum degree of individual self – assertion8. The theory identifies the right –bearer by virtue f the power that he or she has over the duty in question. He or she can waive it, extinguish it, enforce it or leave it unenforced. This decision is his or her choice. Individual discretion is the single most distinctive features of the concept of rights9. Whereas the interest or benefit theory, first propounded in the writings of Bentham and then further adopted by Ihering argue that the purpose of rights is not to protect individual assertion but certain interest. Rights are said to be benefits secured for persons by rules regulating relationships10. The particular strength of the interest theory is that it covers all types of rights, the so – called socio – economic rights such as health care, education, a minimum income, as well as ‘liberties’.

Hart conceives of law as a system of norms, or he says rules. More specifically, he conceives of law as a system of primary duty – imposing rules and secondary rules of changes, adjudication, and recognition. Duty imposing rules is, of course, the paradigm of rules, as they directly guide human behavior by giving reasons for action; no normative system can do without them. On the other hand, the secondary rules are about the primary rules in the sense that they are used to identify, and to create, change and extinguish primary rules, and to set up legal institutions that apply the primary rules.

There are other propositions as well which clearly direct to the different types of ‘rights’ and the concept of it is used ambiguously. Hohfeld discuss similar ‘rights’ in his work. He shows that the sentence “X has a right to R” may mean that Y has a duty to let X do R so that X has a claim against Y. The claim itself is the right strictosensu. The sentence may, however, and usually does, mean that X is free to do or refrain from doing something. It is not a question of what Y must do or not do, but what X may do. Hohfeld called this “right” a “privilege”. The word “right” is also sometimes used where what is meant is “power”. X has a power when he or she has the ability to change legal relationships, for example by making a contract or a will. The term “right” is sometimes used to describe the absence of a power – an immunity.

There is no unanimity of opinion as to whether every right us have an object or not. According to Salmond, an ownerless right is an impossibility. There cannot be a right “without a subject in whom it inheres any more than there can be weight without a heavy body; for rights are merely attributes of persons and can have no independent existence”. The object of thelaw is to protect a person in the exercise and enjoyment of a particular right and not to protect a right in itself. A right cannot exist in avacuum.

The rights that ‘fundamental’ in the relevant sense must be those rights which, it can be said as a descriptive matter, anyone would not intend to abrogate absent clear words19. The ‘fundamental’ engages not abstract or idiosyncratic notions of what might be thought to be important, but rather, the genuine ‘standing commitments’ of legislatures. That is a ‘fundamental right’, is one with such ‘entrenched and consistent recognition in the decided cases as a fundamental right’ that it can be said, with descriptive plausibility if not thetruth, that Parliament intends to respect it. The purpose that ‘fundamentality’ serves – that is, to refine that the position claim about authentic legislative intention – gives content to the concept: ‘rights are fundamental’ only if it is empirically true that the legislature would not intend to abrogate them using general words. The significance placed upon identifying rights as ‘fundamental’ was just one way to respond to the empirical implausibility of Potter v. Minahan. It is a response that is challenged by the alternative response founded upon the normatively of the principle of legality. The new normativity of the principle of legality directs our attention away from ‘fundamental rights’ and towards ‘vulnerable rights’. Vulnerable rights are those rights which the political process is inherently inept to protect, because they are claimed by a politically weak minority or because they go to the substance of the political process and democratic representation itself.

4. Human Rights – Today:

At present time, the ‘human rights’ are the hybrid form of the all the past ‘rights’. In the United States, it was taken to be “self – evident” in 1776 that all were “endowed by their Creator with certain inalienable rights”; in France 13 years later it was told that “men are born and remain free and equal in rights”. The human rights claimed today go beyond those then argued for economic and social rights, for e.g., right to life’s necessities and to health care, the so – called “ the second generation right”. And they include children’s rights, which were certainly not envisaged in the late eighteenth century. Many who accept human rights do not believe second generation rights, and few accept children’s rights as human rights.

Amartya Sen summarized the human right as “pronouncements in social ethics, suitable by open public reasoning”. And he emphasizes that “the understanding and viability of human rights are intimately linked with the reach of apublic discussion between persons and across borders”. Human rights are rights to which we are entitled by virtue of being human; they hold irrespective of gender and age – hence the importance of recognizing children’s right as human rights. The debate over “universal” human rights versus alleged abuses in the name of culture and tradition can be understood as conflicts between different communities of judgment. Kant observed that the core of what makes Judgment possible our ‘common sense’ shared by other judging subjects. The ground for our ‘common sense’ is the identical cognitive faculties of imagination and understanding that all human beings share. Common sense is thus universal: so in exercising the enlarged mentality, we place ourselves in the shoe of every other person. Judgments are this universally valid. Therefore human rights are universally valid, at least in the writings.

There are people in our communities who do not accept human rights ideas and there are people in communities which reject such ideas who happily embrace them. Likewise, all Germans in the years of Nazis were not Nazis; as some risked their lives to save Jews from the Holocaust. What is it, then, that enables some people to judge, not only differentfrom but in opposition to their communities. Ardent addressed this question too. She thought that we judged as a member of a community “guided by our community sense”. But in the final analysis, we were members of a world community. We have “cosmopolitan existence”.

Human rights must not be seen as a foreigner imposition, a tool of power: rather as an element of shared common sense. It is necessary to participate in dialogue that seriously engages local perspectives. It is necessary to open channels of communication.

All the great world religions have taught respect for the value and dignity of human life, and this is the only necessary grounding for a doctrine of universal rights. It is enough that humans have some common characteristics. Surely in all societies’ people have preferred life to death, freedom to servitude, nutrition to starvation, dignity to humiliation? And human rights claims are one way of addressing these common needs and aspiration of human beings.

Conclusion:

If we attempt to predict the future of rights in our world, we should always remember that the history of rights has neither been predictable nor linear. This is especially true of the past 150 years. During this time people entrusted the fostering and protection of Human Rights to the nation State. Rights were no longer thought of as being an expression of an individual’s faculty, quality or power but as the State’s obligation to protect its citizen’s interest. Rights were preserved in Constitutional documents that handed down rights to the subjects of the territorial State. The upshot has been that when States had to decide between the rights of thein dividual and the “good” of the State, the individual almost always lost in both horrific and denial ways.

Reference 

• M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence, (18thedn, Sweet & Maxwell 2008)
• Hart, Essays in Jurisprudence and Philosophy, (1983)
• R. Flathman, The Practice of Rights (1976)
• H. L. A. Hart, “The Concept of Law” (Oxford 1961); H. L. A. Hart, “Essays on Bentham” (Oxford 1982).
• Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1913) 23 Yale L. J. 16
• Wesley Newcomb Hohfled, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1917) 26 Yale L.J. 710
• V. D. Mahajan, “Jurisprudence & Legal Theory” (5thedn. Eastern Book Company 2008)
• Brendan Lim, The Normativity of the Principle of Legality, (2013) 37 Melbourne Uni. L. J. 372