7 Liberal theory of rights

Dr. Viralaxmi Moganty

Table of Contents

1. Learning Outcomes

1.1 This chapter aims at imparting the liberal theory of rights

1.2 This chapter helps the students to know the perspectives and prospects of liberal theorists contribution for development of human rights

2. Introduction : Liberty explained

2.1 Categories of liberty

3. Basic tenets of Liberal theory of rights

3.1 Perceptions on liberty in classical theories

3.2. Post classical liberal thinking: Identification of Individual rights

3.3. Modern thinking: Quest for Natural Rights

3.4. Modern thinking: Evolution of Democratic rights

4. Recent thinking on liberal theory of rights

5. Summary

1. Learning Outcomes

• This chapter aims at imparting on the liberal theory of rights.
• This chapter helps the students to know the perspectives and prospects of liberal theorists’ contribution for development of human rights.

2. Introduction: Liberty explained

Human rights are not legal rights. Right to life, liberty and many other rights required for human development are not evenly distributed to all human societies even today. But there is a vast contribution of early and modern thinkers for realization and translation of many rights as legal rights as we avail today. The term liberty is generally understand today as a “state of being free”; “a right or privilege” or an “ability to act as one pleases”.

2.1 Categories of liberty

Categories of liberty include Right to life; freedom of speech; freedom for individual development’ and free to choose alternatives. 2 Liberty in general is a sum of assertion of rights3. Right to property, right to religion; freedom to assemble and freedom of press are some significant rights which are contributed by major philosophical and political thinkers in the history. There are other rights that are not yet covered in some geographical regions; for example cultural rights of tribal people. For, in the process of development projects, even after re-settlement, tribal people do not feel contented; for, they have an attachment to the land; trees and some religious sentiments attached to previous habitats. These aspects cannot be compensated by any measure. Gender rights are another example in the arena of liberal theory. Child-rights are still another area where child’s right to development is suppressed in different geographical regions differently. For child’s right to development includes right to health and education in most societies is ill provided; child is more deprived in under developed nations. Right to privacy; right to free from domestic torture are some personal rights yet need social and legal intervention.

Liberty to express one’s views; one’s will to do or not to do is an evolving concept and it is understood in different places differently. For example a widow could not express to marry again in the early Hindu/Indian societies. Women were used to be forcefully killed by sending them to pyre along with the dead husband. It is through several struggles and contributions and efforts made by social reformers present woman is allowed to remarry on the event of husband’s death. Liberty is necessarily to be understood at psychological; social; economic and political level. And it only can be translated as legal right after long struggles. Even constitutions of many nations were evolved from early tyrannical, monarchic, oligarchic rules to democratic constitutions to realize liberty for the most number of people.

Figure 1: statue of Liberty

The Statue of Liberty is a figure of a robed woman representing Libertas, a Roman goddess. She holds a torch above her head, and in her left arm carries a tabula ansata inscribed in Roman numerals with “JULY IV MDCCLXXVI” (July 4, 1776), the date of the U.S. Declaration of Independence. A broken chain lies at her feet. The statue became an icon of freedom and of the United States, and was a welcoming sight to immigrants arriving from abroad. the U.S. Declaration of Independence announced that the thirteen American colonies then at war with the Kingdom of Great Britain, regarded themselves as thirteen newly independent sovereign states and no longer under British rule. Instead, they formed a new nation: the United States of America. John Adams was a leader in pushing for independence, which was passed on July 2 with no opposing vote cast. A committee of five had already drafted the formal declaration, to be ready when Congress voted on independence. John Adams persuaded the committee to select Thomas Jefferson to compose the original draft of the document. Jefferson’s preamble is regarded as an enduring statement of human rights, and the phrase “all men are created equal” has been called “one of the best-known sentences in the English language “Thomas Jefferson (April 13 [O.S. April 2] 1743 – July 4, 1826) was an American Founding Father who was the principal author of the Declaration of Independence and later served as the third President of the United States from 1801 to 1809.

However, we should not understand liberty in the negative sense for, liberty in a society and in a given constitution is a only a legal right to do an act that is pre thought as conducive for the protection of others’ rights in the same society and not an interference for legally permitted rights of others. It is negative liberty when used in a wrong sense harming one’s self . As we very well know man is socially responsible to family, society he cannot exercise negative liberty or freedom in a wrong sense (See image on negative liberty)6; negative liberty where youth are using their freedom in smoking, drinking and use of drugs that impact them badly.

Hence Liberty is not what man can do whatever he wants to do without considering the ill effects of an action. Kemp Allen7 puts it “Man is not ‘born free’. He is everywhere in chains, because at the very moment of his birth, man is chained by an umbilical cord. When the cord is severed, for the rest of his life he is navel bound to the society into which he is born”. Kuppuswamy 8held that excessive freedom of speech lead to a conflict; hence freedom implies an order. Thus rights are civil rights only when they are respected by all the members of society and protected by a judicial system.

When we look into the history of rights, we find that these rights are not distributed equally to all the members of the society at each phase of history. Thus the notion of liberty became a limited concept to a vast member of society and across nations. We also find some wealthy people and nations to have excessive rights too. How do we expand the notion of liberty that is healthier and equal? What are the contributions of philosophers, political thinkers and others to the liberal theory of rights?

As early as in ancient Greek societies; from the words of Socrates to theories of a recent western thinker namely John Rawls, liberal theory of right is revisited in each phase of political history. Thus contributors to liberal theory of rights in the west are many; Hobbes; Locke; Rousseau J.S. Mill are some political philosophers to contribute for liberal theory of rights. We can say each political thinker in the west or in the east from Kautilya or Chanikya to Gandhi – all are all contributing to this thought. Recent activists like Aung Sang Suki and many others are still contributing through their moments for better understanding of liberal notion of rights.

Furthermore one has to look at some dilemmas too while understanding the notion of liberty. In the current day context; as for example, liberty is questioned by some feministic notions in relation to the rights of the child. For example upbringing of a child is mostly understood as a woman’s role alone. But woman’s right, needs to be understood, in terms of her will to participate, as an intellectual contributor too, to society. Child rights are in conflict with such notions. Thus there are claims for equal participation and sharing of domestic duties by both the parents equally. A well defined state gives primacy to child where it provides well maintained support systems for child-care. Thus the term liberty is a vast concept and it is to be measured and practiced each time through redefining it as to the needs of the changing times. Hence it is in this backdrop one may study the liberal theorists’ contribution for the expansion of human rights.

3. Basic tenets of Liberal theory of rights

Let us look into the history of rights and liberal theorists’ contribution for the expansion of rights in general. Coming to the Liberal theory of rights, it is mainly understood in the political perspective; in the contribution of political philosophers and political thinkers whose theories helped for the evolution of democratic states. This again is understood in four heads here:

• Perceptions on liberty in classical theories
• Post classical liberal thinking and Identification of Individual rights
• Modern thinking and Quest for Natural Rights
• Modern thinking for Evolution of Democratic rights

3.1. Perceptions on liberty in classical theories:

‘Polis’ is the Greek term for state. It is in the hands of Socrates; Plato and Aristotle state is redefined and rights were questioned. Though Socrates did not provide us with any written text on the theory of rights it is in the works of Plato, views of Socrates are depicted. Socrates who is considered to have lived from (470-399 B.C.) was deprived of his right to speech to tell about his ideas on justice and views against injustice and despotism. In fact Greek city states like Athens were considered to be most advanced polities of their times. But Socrates accepts death sentence just to tell that man is obliged to follow the laws he alone constituted in a society or state. At the same Socrates makes us to think whether an incomprehensive law makes the citizens suffer from injustice. Thus Plato’s Republic comes to us as a revolt against an unjust law. Thus views of Socrates and Plato tell us that a law or legislation should not be a hastily conceived law but has to give a scope for future expansion. Aristotle’s idea of state and rights expounded in his classics namely Politics and Ethics nevertheless are founded on philosophical basis of the state conceived by Socrates and Plato. Aristotle’s Ethica Nicomachea reads:

“We do not allow a man to rule but a rational principle”. Nowhere, Aristotle insisted to obey an “unjust law”. Furthermore “Aristotle foresees certain aspects that cause revolutions in a state. Aristotle cautioned the rulers that the law should not provide for anyone such facility as ‘having too much power whether derived from friends or money’ and also that the constitution must not allow disproportionate increase of any citizen. Aristotle insists to give moderate honour for longer time rather than great honour for longer time’. Aristotle cautions the rulers to see that the most number of citizens be placed in the middle class in the population and lesser number in the poor and rich populace. Though Aristotle’s constitution is a combination of aristocracy and democracy, Will Durant a philosophical theorist of our times says that “it [Aristotle’s state] is the best possible state”. He substantiates: “Because the people are so easily mislead, and so fickle in their views, the ballot should be limited to the intelligent”. Durant adds: “constitutional government offers this happy union. … . it is the best possible state”. Thus we find in ancient theories certain path making efforts for the emergence of liberal theories in the modern period.

3.2. Post-classical liberal thinking: Identification of Individual rights:

After the death of Aristotle and after the fall of Athens the political thought of the West acquired a cross-culture of Greece and Rome. The philosophy of state developed in this period is of Epicurean (named after Epicurus) and Stoic in nature. In a way Epicureans and Stoics took a part of Greek ethical thought on ‘good life’. However this ‘good life’ is inclusive of man’s ‘right to pleasure and avoidance of all pain, worry and anxiety’. While hitherto in the classical period ‘collective well being’ is given primacy to ‘individual rights’, in the post classical times individual is identified. To sophists too ‘man is the measure of all things’. But, Sophistic notions were criticized by Plato and Aristotle basing on that fact that too much inclination for hedonistic pleasure harms the collective well-being. Yet, the roots for natural law conception, which is basis for all human rights in a legitimate state, are in the philosophy of Epicurus. Epicurus said:

“All men are essentially selfish and seek only their own. But in this way the good of everyone is jeopardized by the equally selfish action of all other men. Accordingly men either enter into a tacit agreement with each other neither to inflict nor to suffer harm”.

Similarly Stoicism of Rome depicted in the works of Seneca too identifies good citizenship as we found in the words of Aristotle and holds that immodest property is the most dangerous element that befogs the distinction between true and false. Further, it was Gaius and Ulpian Roman lawyers who established the rational basis of state in the post classical times. To Gaius and Ulpian utility of state is the product of the ‘sense of justice’. According to Gaius and Ulpian ’the law of nature’ is that which treats all men equally anywhere on earth. Hence the invention of a contractual state that guarantees individual rights is anticipated in the theories of post classical thinkers before it is thought in the modern period.

In between post classical times and modern period there was a renaissance-period or a period to give rebirth to human spirit that was ignored in the 15th century. Machiavelli’s contribution to liberal notion of state is worth mention in the history of political thought. He was the first to break the tradition of religious domination that is witnessed in the medieval period when individual rights were ignored to the most extent. In his Prince Machiavelli held: “Prince and republics who wish to maintain themselves free from corruption must be above all preserve the purity of all religious observance, and treat them with proper relevance”.16 Further with due regard to Aristotle’s conception of state Machiavelli said:

“… just as in the body natural as Aristotle said, the heart is the source of life, having in itself the blood which it transmits to all the members thereof, whereby they are quickened and live so in the body politic the will of the people is the source of life, having it in the blood, namely political forethought for the interest of the people, which it transmits to the head and all the members of the body, by which the body is maintained and quickened”.

It is in this back drop of struggle for natural rights emergence of contractual theories of modern thinkers and for enforcement of natural rights emerged in the modern period.

3.3. Modern thinkers: Quest for Natural Rights:

Philosophically and politically speaking Modern period is also known as “The age of Enlightenment” or “The Age of Reason”. Discoveries in the science in the modern period are many. In the early 16th century Copernicus’ (1473-1543) heliocentric theory made a significant impact in the scientific of look of the world. Further Galileo’s law of falling bodies during 1564-1642 and Newton’s laws of gravitation during 1642 and 1727; Robert Boyle’s law of heating bodies and Harvey’s discovery on circulation of blood and many other scientific inventions contributed for rationalistic theories on state and rights. While modern science is based on the sense perception; verifiable principle and on quantifiable methods, Francis Bacon a philosopher who is also considered as the Father of empiricism developed inductive logic . All these contributed for the scientific and rational basis of political theories too. Look at the image on path-making political philosophers namely Plato, Aristotle, Hegel, Marx, Hobbes, Locke and others.

Further, industrial revolution contributed for lessening the manual labour. At the same time it also contributed for human exploitation, economic exploitation and political hegemonies that raised revolutionary questions on rights of nations and peoples. Thus modern period includes contributions of many political theorists from Hobbes to Marx.

In the modern period, Hobbes (1588-1679); John Locke 1632-1704), and Jean Jacques Rousseau (1712-78) provided theories on natural rights of man and social contract based- state. Thomas Hobbes’s Leviathan states that man in the original ‘state of nature’ appears to be ‘brutish, selfish and egoistic’ where man is reduced to physiological and psychological components. Man’s desires too are endless and thus there arises a ‘state of war’ among people. Hence to avoid this state of war where every man is every man’s enemy, man invents state based on three laws. The three laws for the formation of artificial state or a contractual state that Hobbes aimed at are: first law to acquire peace against war; second aims at security of individual possessions and the third is an arrangement of a political state based on covenance. Thus man enters a contract with the state to protect his selfish ends according to Hobbes. However, Hobbes acknowledged virtues namely benevolence, justice and peace for furtherance of a political state and security of rights.

Locke invented a contract-based state to protect the right of man to private property. To support his aim Locke attaches ‘theory of labour’ to his ‘theory of right to private property’. This leads to the formation of a well organized state. Though Locke was criticized that he is in support of capital formation of wealthy class Locke was not devoid of a political state that supports ‘reason’, ‘toleration’ and ‘moderation’. Thus he believes in the ‘natural law’, ‘will of majority’ and ‘common wealth’.

Further in the theory of Rousseau, ‘social order’ is not a mere ‘social order’ but a ‘sacred order’ that facilitates one’s social life and such rights are ‘sacred rights’ to Rousseau. While Hobbes and Locke failed to see the sensitive side of human being in the construction of state to the most extent Rousseau bases his theory of state on the benevolent nature of human being. Thus Rousseau could assume the man in the ‘state of nature’ not only as ‘self-loving’ but also as a ‘responding man’ to other’s sufferings’. This type of understanding, lead Rousseau to conceive the idea of ‘general will’. Rousseau’s “general will” is a will of everybody through which every individual in a state respects other’s will in full dignity and in sense. Furthermore Rousseau contends that primitive man did not know the ‘art of pleasing’. Thus Rousseau’s state is more close to democratic and humanistic state.

As said at the outset many a thinkers can be brought to the arena of modern thinking who can be summarily discussed below.

3.4. Modern thinking: Evolution of Democratic rights

In the hands of liberal thinkers namely Mill, Rawls, Dworkin and Marx liberalism took an unique turn. Some liberals may not consider Marx a liberal, but he is also liberal because Marx’s goal is freedom; emancipation and right to freedom; free from social exclusion. However any theory that advocates excessive liberty is not conducive both to Mill or Marx. It is generally understood that liberal theorists like Mill, Rawls and Dworkin given primacy to liberty, Marx gave primacy to equality. However principles of equality and liberty both are important for institution of Democracy.

John Stuart Mill (1806-1873) is an English philosopher and also an economist. He is basically an utilitarian. Utilitarian philosophy aims at the utility of an action; and it aims greatest happiness to the greatest number. Freedom or liberty is a basic principle to attain happiness. So Mill’s theory is based on liberty, and happiness to majority of people. He is highly acclaimed utilitarian and liberal thinker.

J.S. Mill in his Liberty postulates that despotic rule prevents liberty of people; liberty can be sanctioned only in a state where state exercises its power in a limited way over individuals. He is against slavery, and for natural rights of man. Mill defined social liberty as protection from authority. Social liberty provides constitutional checks to citizens. Mill is against censorship and advocated for freedom of speech. Mill advocated child rights. He said:

“… to bring a child into existence without a fair prospect of being able, not only to provide food for its body, but instruction and training for its mind, is a moral crime, both against the unfortunate offspring and against society ( 1963, vol. 18, cited.,)

Mill’s theory on liberty necessarily is based on morality for he said in his Liberty: Individuality is the same thing with development, and … it is only the cultivation of individuality which produces, or can produce, well-developed human beings … what more can be said of any obstruction to good, than that it prevents this? (Mill, 1963, vo.18:267, cited.,).

John Rawls’ Theory of Justice (1971/1991) deals with liberal theory of rights. In his theory individuals enter into an agreement in a state under a “veil of ignorance”. State is run with a “difference Principle”. Rawls “difference Principle” holds that there are inequalities in society but the least disadvantaged groups will not be affected. Rather to Rawls, where the basic difference principle is associated by public recognition and principle of reciprocity. The principle of reciprocity takes care that no social group advances at the cost of another.

Dworkin (2000) is another thinker of recent times. Dworkin is in fact a follower of Rawls postulated egalitarian liberal state. Hitherto liberal theorists claimed that their state is a welfare state. But Dworkin and others contend that Rawls’ theory did not focus on equality as much it focused on reciprocity. Dworkin focused on equal opportunities for all. To Dworkin legal validity depends on moral validity. This moral validity for Dworkin is not based on sources of validity and in the consensus of lawyers but in the value of a thing or person. It is not just law that determines the validity of principles of life. To Dworkin this validity is based on the social rule and social life that exists outside court room.

It is a positive feature of liberal democracies that they aim at such a state which helps individuals for their independent growth with least interference of state or authority to their personal rights like right to privacy etc., However, all these liberal theories nevertheless aim at a welfare state supported by capitalistic democracies. For the principle of free trade or laissez faire of liberal theorists is conducive for capital formation indiscriminately. This is certainly against equality as Marxists dreamed. For, to the Marxist state is a class less society and it is devoid of private property and everything is state-owned.

4. Recent thinking of liberal theory of rights:

Secular power and democratic rights of liberal thinking have been acquired from evolution of kingly states to democratic state after long struggles like French revolution; colonial struggles of Nations like India, Pakistan and other nations and impact of Industrial revolutions. Yet as we understand even today rights are not evenly distributed. Karl Marx (1818-1883) questioned social and economic exploitation of labourers and capital accumulation. Capital accumulation by employers of industries or factories due to non-payment of proper pay to workers. Thus a surplus will be created. This surplus is the amount which is a due to the industrial labourers. Marx influenced subsequently through his works namely Das Capital and Communist manifesto to evolve better laws for workers in factory and other service; while some consider him as communist and others as liberal and still others as sociologist. Marx acquires a special place and his theories on economic exploitation are ever relevant to the global societies. Today’s idea of democracy = Liberal Democracy plus Socialistic democracy= freedom plus equality. Indian constitution is best example for “SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”. This we can better represent in the following image:

In the human history nations witnessed political hegemonies of nations like US and Britain over other nations. Mahatma Gandhi, the Father of Indian Nation led a nonviolent revolution to free India. On the other hand we see still struggles for democratic governments in the nations like Myanmar. Aung San Suu Kyi’s pre democratic movement of “8-8-88” could evolve democratic nation after long struggle. Recent utilitarian theories have not thought of equality as seriously as Marx did. Furthermore in the name of liberty rights should not be limited to any one class or one nation. Nations and people need yet to evolve rights. Only few people and nations are granted to right to liberty as legacy from generations. Nations still suffer from discrimination and deprivation based on gender, race, age; caste and other geographical categories too. Security of women and girl child is still at stake across the globe. In view of high rate of crimes against women, children and poor and many disadvantaged groups and crimes related to use of drugs and alcohol and other crimes like cyber crimes and economic exploitation certain rights like “rights to property” and “right to privacy” need to be rethought. The highest court of India, the Supreme Court of India is thinking of redefining the “right to privacy” and it is under discussion under the headship of Justice Jagadish Singh Kher who is associated by other judges namely Justice Chandra D.Y. Chandra Chud and others29. It is time to evolve Gandhian legacies and Marxian economic practices and normative ideologies and more sophisticated understanding of rights.

5. Summary

This chapter covers a vast area of liberal theory of rights from ancient Greek times to present times. While ancient theorists focused on the collective well being and rightly framed laws and strict discipline, later theorists focused on certain individual rights like right to private property; freedom of expression etc., We also find from liberal theory of rights-module that before the conception of liberty and understanding in proper sense there is also every scope for use of liberal theory of rights only by few people. Hence we need to reexamine liberal theory of rights. We also understand that it is time to evolve Gandhian legacies and Marxian economic practices and normative ideologies and more sophisticated understanding of rights.

Reference

1. Barker, Sir Ernest (1947/1978). Social contract Essays of Locke, Hume and Rousseau, London: Oxford University Press, 1947/1978
2. Varalakshmi, Moganty (2017)The Concept of Justice: a Philosophical Analysis – Reference to Plato, Aristotle, Hegel, Marx and Engels, New Delhi: serials Publications, 2017, pp.361- 362, See further Aristotle, Politica , Translated by Benjamin Jowett, Oxford: Clarendon Press, 1920.
3. Sen., Amartya (2009). The Idea of Justice, London: Allen Lane and Penguin
4. Alexander Moseley(n.d.,) Political Philosophy: Methodology in ,Internet Encyclopedia of philosophy available at http://www.iep.utm.edu/polphil/
5. Routledge Encyclopedia of philosophy available at http://library.hds.harvard.edu/key-e-resources/routledge-encyclopedia-of-philosophy-online
6. Gerald Gaus (2014)., Liberalism in Stanford Encyclopedia available at https://plato.stanford.edu/entries/liberalism/