Dimensions or Kinds of Rights

We have discussed the concepts of positive rights (legal rights), negative rights, residual rights and fundamental rights and also rights, which are available in terms of Bill of Rights or Fundamental Rights in the Constitution. There could be various other dimensions, such as civil, economic, human, legal, moral, natural, political, social and cultural, which require the corresponding rights to be secured. These are grounds through which claims for rights can find justification. In contemporary times, it is also common to claim rights on the grounds of or on behalf of an unborn child, animals and the environment. Debate over abortion, animal protection and environmental rights are significant political debates in the contemporary times.

There are various international instruments that afford protection to various dimensions of rights, including human rights. They include the following:¹⁵

• The (UN) Universal Declaration of Human Rights [1948]
• The Convention on Prevention and Punishment of the Crime of Genocide [1948]
• The European Convention for the Protection of Human Rights and Fundamental Freedoms [1950]
• The International Convention on the Elimination of All Forms of Racial Discrimination [1965]
• The International Covenant on Civil and Political Rights [1966]
• The International Covenant on Economic, Social and Cultural Rights [1966]
• The American Convention on Human Rights [1969]
• The International Convention on the Elimination of Discrimination Against Women [1979]
• The African Charter on Human and People’s Rights [Banjul Charter 1981]

These are declarations, conventions or charters that give protection to a variety of rights—civil, cultural, economic, human including moral, political and social rights. These are designed to protect a number of traditional civil and political rights. Added to these and also including some of them, are the rights mentioned in the American Declaration of Independence, 1776 and the French Declaration of Rights of Man and Citizens, 1789.

It may be useful to have a look at the kinds of rights that have been declared in the French Declaration, the UN Declaration and the Indian Constitution and also the rights identified by William Blackstone, A. V. Dicey and M. Fordham in the English Common Law. This could help us group various dimensions, such as civil, economic, human, legal, moral, natural, political, social and cultural, which require corresponding rights being secured for the individual and/or the groups.

It may be appropriate to note that consciousness about different rights for the individuals and that of the groups and demand for their recognition have been made and recognized at different occasions in history. For example, the Roman period is known for installing the Consul, the Senate and the Tribute. These three represented the respective rights and interests of the monarchical, patrician (elite and the rich) and the plebeian (lower or the common) elements. In feudal Europe, there were different groups, nobility, clergy, etc. whose rights were primary. Individual, as a concept having rights of his/her own, was neither prime nor consciously in sight. As Fernand Braudel has observed, medieval Europe was more concerned with privileges than rights.¹⁶ This meant privileges to one group or class against the interests of the other—the nobility, the vassal, the clergy, and the emerging bourgeoisie and the serfs, etc. In medieval Europe, artisans, craftsmen, merchants and occupational groups were arranged as guilds. They also reflected group’s rights or privileges.

The concept of ‘Rights of Man’ or that of the individual as a conscious perspective came to the fore of debate only in post-Renaissance Europe and has continued as a staple feed for debate on rights. However, it is also recognized that claims and rights of human beings should not feasibly be based on the conceptual category of ‘individual’ only. The recognition of rights of groups will be equally important at times to preserve even the rights of the individual. For example, rights of minorities in many circumstances should be protected even to protect the basic or core human rights of the individual belonging to that category. As such, claims and recognition of rights of individuals and groups have to be appreciated in a complex dynamics of this relationship. UN Declaration on Human Rights and the provisions contained in the Fundamental Rights category in Indian Constitution recognize this aspect. Table 8.1 outlines the various dimensions and types of rights.

Table 8.1 Dimensions and Types of Rights

Briefly, various dimensions of rights may be listed as follows:

• Natural rights: Natural rights are based on natural law and individuals are entitled for them naturally. These are either inherent in individual due to natural claim or claim of moral and dignity. Thomas Hobbes and John Locke have discussed natural or inalienable rights on the basis of rights prevailing in the state of nature. Thomas Paine and Thomas Hill Green have argued for natural rights on the basis of inherent moral claim of individual. In either case, naturally available rights or rights available to human moral claim are inalienable. Some of the commonly agreed natural rights are, right to life and security (even Hobbes agreed that one can disobey the sovereign when life is threatened), liberty, property and resistance to oppression. The American Declaration of Independence [1776], the French Declaration of Rights of Man and Citizens [1789], and the UN Universal Declaration of Human Rights [1948], all acknowledge natural rights as inalienable and imprescriptible. Bentham and other Utilitarian rejected natural rights as nonsense and argued for legal rights.
• Moral rights: Moral rights emanate from the very personality of the individual and are moral claims directed towards the conscience of the community or society. These tend to support individual as an end and moral agent. They are in the nature of ideal rights. In actual practice, they may or may not exist depending upon their legal recognition and enforcement. For example, Socrates, a Greek thinker, insisted on the right to speak truth, as he preached, even at the cost of drinking hemlock. Immanuel Kant, a German philosopher, felt that human beings should be treated not merely as means but as end also. Green also argued that individuals need rights for development of moral consciousness. Contemporaneously, debate over right of an unborn child or for that matter, right of a woman against rape in wedlock may be considered as examples of moral claims. Moral claims have been argued for securing legal rights; law against gender determination and abortions, laws protecting women against rape and violence in wedlock. However, Bentham was of the view that moral rights are a mistaken way of conceiving ‘legal rights that ought to exist’.²¹
• Human rights: Human rights can be considered as a combination of natural and moral rights. In fact, it has been argued that human rights are the most influential form of moral rights. But not all human rights come merely from moral claims. Many moral claims would be culture or community specific and could not be considered as sole foundation for human rights. In the Preamble, the UN Declaration on Human Rights [1948], spells that ‘recognition of the inherent dignity and of the equal and inalienable rights of all members of human family is the foundation of freedom, justice and peace in the world.’ The International Covenant on Civil and Political Rights states that ‘human rights derive from inherent dignity of human person.’²² As such, they are general rights rather than specific rights and are universal to the very existence of all human beings. Human rights are based on human personality and this is not bereft of moral claims though. But human rights also seek from natural rights in a large way and reflect fundamental inner human derive irrespective of communitarian or cultural specificity. Human right requires all human form and personality, in whatever age group, to possess the same claim of human development and personality, lest the claim for rights of unborn child would be irrelevant. It is not settled as to how are human rights different from a combination of natural and moral rights, social and economic rights, cultural rights and political and civil rights. UN Universal Declaration itself appears to include moral, natural, cultural, socio-economic, civil and political claims as basis of human rights. Incidentally, many of the claims that women’s right groups insist, may appear initially as moral claims based on gender relations, e.g., against rape in wedlock vis-à-vis consent. However, they should be considered as part of human rights and accordingly women’s rights with gender specificity should be treated as human rights issues. After all, the criteria of inherent dignity of human person does include the human person of a women, a child, and even an unborn child.
• Civil or social rights: Rights in person and property of an individual in relation to society or community are civil rights. It goes without saying that civil and social rights are claims based on natural, moral and human grounds. It could include rights to (i) physical freedom such as right to life, liberty and security, health and movement of body, etc. (ii) intellectual freedom such as right to conscience, thought, education, belief, religion, expression and speech and also right to freedom of association, press, etc.; and (iii) contractual freedom such as right to have contractual relations with others. Contractual freedom will encompass right to enter into contractual relations in economic and social (marital) aspects. Right to property is a significant civil right that comes under the contractual aspect and includes right to hold temporarily or on behalf of others, possess, transfer, exchange and dispose off property. Right to property is also treated as economic right. Social equality is one of the important aspects of social rights as enjoyment of rights may get affected if right to social equality is not secured. Right to social equality implies absence of distinction based on caste, race, class, colours, language, sex, religion, etc. Article 2 of the UN Universal Declaration of Human Rights recognizes right to social equality. Indian Constitution also recognizes right to social equality and Article 17 against untouchability specifically reflects this aspect.
• Economic rights: Rights that relate to a person as a worker and his/her engagement in gainful employment come under the category of economic rights. The French Declaration provides for ‘Rights to labor, tillage, or commerce to the skill of the citizens’, the UN Universal Declaration spells right to work, free choice of employment, protection against unemployment, right to equal pay for equal work, right to form and join trade unions for protection of interest [Art. 23] and right to rest and leisure (reasonable limitation on working hours and periodic holidays), etc. [Art. 24]. There are two views on economic rights. From the provisions mentioned previously appearing in the French and UN declarations, it appears that economic rights are claims of workers and those who are employed and are having no means of production or employment. But it is also argued that economic rights includes right to contract, own and manage means of productions, etc. We can infer that economic rights could be described in two ways—one in terms of workers and employees and the other in terms of owners and managers. In fact, recognition of economic rights of the owners and managers and that of the workers and employees has evolved at two different times of history. Seventeenth and eighteenth centuries witnessed claim for recognition of economic rights of the owners and managers and got identified with early liberalism. It is only in late eighteenth and nineteenth centuries after the socialist movements and reformist liberal idea stressed the need for rights of workers that their economic rights came into picture.
• Political rights: The idea of political rights is a result of laissez-faire and liberal position, which stressed non-interference of state in individual’s affairs. Early liberalism argued for rights of individual to limited government. John Locke, for example, argued for a limited representative government. Bentham advocated for one person; one vote exemplified by the utilitarian principle of each person is to count for one and no one for more than one.²³ William Blackstone treated political rights as negative rights in that it is about curbing government. The claim for political rights emerged from the idea that people being the repository of supreme power, should be the electors and constituent of government. Barker, for example, has advocated that political rights instead of being treated as negative rights, as Blackstone holds, should be taken as right to constitute and control government. Thus, political rights in the form of right to vote and right to contest, get elected and occupy political offices have been stressed. Right to oppose constitutionally and peacefully; right to petition; right to form union and associations and defend political freedoms and other interests; right to hold public meetings, etc., also came to occupy the same footing. In the Indian Constitution, the right to vote is a constitutional right under Article 326 with the statutory backing in the Peoples’ Representation Act, 1951. Political rights are rights of individual as citizen. Liberal democracy advocates political right of universal suffrage, i.e., right to vote to all eligible male and female citizens. However, universal suffrage could not become a reality at least for women even in England, the mother of Parliamentary democracy, till 1919. Secondly, while political rights were very much advocated in European countries, the same however, were denied to people under colonial rules in ninteenth and first half of twentieth centuries.
• Legal rights: Legal rights have legal basis. They are a product of and protected by laws. Legal rights relate to an individual as a legal or juristic person. Theorists who support the monist view of sovereignty such as Hobbes, Bentham and Austin argue that all rights are a product of laws formulated by the sovereign. Legal rights are those, which are legally provided. For example, in India now, right to information is a legal right as it has been provided for by an Act.
• Women rights: Rights in their natural, moral, human, civil and social, economic, political and legal aspects do have relationship with women. These rights should be gender neutral and should be available to both male and female. Specifically, lack of right to vote, equal pay for equal work, equal property rights, etc. is reflection of an unequal distribution of rights. It has been argued that unequal distribution of rights due to gender bias has also resulted in women’s subordination, exploitation and violence against them. As a result, demand for legal and political rights for women has been made. Feminist movements have largely been influenced by the ‘equal right’ considerations. We come across such instances where women right activists have fought for equality of rights, especially right to vote. One such instance is the Women’s Rights Convention in America, which in 1848 adapted a revised Declaration of American Independence. It read, ‘We hold these truths to be self-evident: that all men and women are created equal.’²⁴ Elizabeth Cady Stanton, the women’s rights activist in America, was one of the vocal supporters of the ‘equal right’ movement in the mid-1840s. Women rights have also been understood in terms of securing their rights within wedlock, including rights against family violence, rights against rape and sexual abuse in wedlock. However, ‘equal right’ feminist movement has to grapple with certain religious and cultural specific issues. It has been argued that there may not be universal women rights per se. For example, a women’s right to dress as she wishes may be restricted by a religious practice itself. Further, it would be difficult to find a moral or teleological argument to support or deny whether a bikini or a naqab (long veil generally worn by Muslim women in many countries) is expressive of freedom or subjugation, unless it is by choice. Similarly, many of the women rights are subject to the political system that prevails. For example, in a political system that has not allowed political rights to male, political rights to female are absent. The question, which gains importance in this context, is how to construct an ideal type of women’s rights. The new direction to feminist movement came from the publication of Betty Friedan’s The Feminine Mystique in which she advocated liberation of women from mere motherhood to full human creativity. She proclaimed abortion as woman’s civil right and exhorted women to become active self-determining people. At times, radical feminists have portrayed women rights as if they are opposed to male rights. Historically, this has been due to identification of political and economic order with patriarchy, i.e., male domination. Even male-female conjugal relationships have been seen as one of domination. As a result, demand for sexual liberation from male domination has been made. Perhaps it is better to argue that women’s rights should be part of human and moral rights. But given the demands for women rights being made on various grounds and against various aspects of ‘male domination’, it appears that the debate on women rights is still evolving.
• Right of self-determination or right of nationhood: Literally, self-determination stands for ability to control one’s own destiny and it relates to autonomy, freewill and freedom of individual in deciding as a moral agent. In the context of organized political movement of groups, the right to self-determination means right to decide about self-rule or government or be sovereign from others. This refers to the claim of community and cultural, ethnic and linguistic groups. In the early nineteenth century, cultural, ethnic and linguistic similarity gained importance as the basis of nation-state and the basis of political organization. In fact, in the post-First World War, Woodrow Wilson advocated the doctrine of right of self-determination, as the basis of reorganizing the Austro-Hungarian, the German and the Ottoman Empires. As a result, Poland, Czechoslovakia (taken out from Austria), Serbia, Yugoslavia for Croats and Slovenes (taken out from Austria and Hungry), Estonian and Lithuania (taken out from Russia), Albania, etc., came into being. This was the first wave of operation of the doctrine of right to self-determination in Europe. In the post-Second World War, this doctrine was invoked by many nationalities to gain independence from colonial rules in Africa, Asia and Latin America. In fact, movement for creation of Bangladesh out of Pakistan can be cited as an example of operation of right to self-determination on linguistic basis. This could be termed as the second wave of operation of the doctrine of right to self-determination. After the breakdown of the erstwhile USSR and the Eastern European communist bloc, a third wave of operation of the doctrine of right to self-determination took place. A host of countries in Central Asia and the Balkans emerged out of this bloc by- and-large coinciding with their ethnic, linguistic and cultural identity with the statehood. While the doctrine garners supports from the liberals because of their commitment to the principle of self-determination and autonomy, it also got endorsement from the Marxian angle, as it was invoked in the struggle against colonial and imperial rule—imperialism being the highest stage of capitalism. However, we may add that the doctrine of right to self-determination has proved to be a double-edged sword. It has proved to be problematic in poly-ethnic and multicultural national-states.
• Environmental rights: Environmental rights refer to claims of communities or groups for protection and conservation of nature and surrounding environment (neighbouring forest areas, sources of water and water bodies, etc.) for sustainable benefit of whole of human beings or groups/communities sharing the neighbouring habitat. Sustainable benefit implies drawing benefits from nature and environment without progressive damage to it. Environmental rights have been insisted in many ways. Green movements and environmentalism are expressions of collective effort to protect, conserve and sustain nature locally and globally. These movements are also critical to the damage to nature created by industrial countries. There have been certain groups and communities that have struggled against environmental damage locally. For example, the Chipko movement in western Uttar Pradesh under the leadership of Sundarlal Bahuguna fought to save trees by adopting and protecting them from being cut or felled; the Narmada Bachao Andolan (Save Narmada River Movement) under the leadership of Baba Amte and Medha Patekar has been fighting against peoples’ displacement due construction of dams. It is generally agreed that environment presents public good and is collective heritage of all. Though the debate on relative merits and demerits of development versus damage to environment is still on, it appears that the traditional rights of people residing in natural habitats and forests to have rights to forest products, access to natural water, grassland and such accesses are getting limited due to either their displacement or damage to nature.
• Minority rights: Minority rights imply two aspects—rights of political minority and rights of social-cultural or/and religious minority. So far as conception of political minority is concerned, this is temporary and dynamic situation in democracy. Politically, majority is the operating criteria in selection of office bearers and decision-making in democracy. But majority and minority are shifting and non-permanent. Even though, at least, three thinkers and statesmen namely, Thomas Jefferson, J. S. Mill and Alex de Tocqueville expressed their concern over ‘majoritarian tyranny’. They apprehended that domination of majority would be inimical to the self-development of the individual, as those with minority opinion or view would be repressed. Jefferson, on the occasion of his inaugural address on 4 March 1801 on becoming President, emphatically spelt out the principle of minority rights on political terrain. He said, ‘All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.’²⁵ In the field of social-cultural and or religious minority, various political instruments and charters have been provided for protecting their rights. For example, the Indian Constitution has provided certain rights to social-cultural and/or religious minorities. It may be noted that Motilal Nehru Report, 1928 has also provided for right to freedom of conscience, free profession and practice of religion, provision relating to elementary education of members of minorities. Granville Austin says that these rights were in fact called ‘Minority Rights in the early days of the Assembly and they appear in the Constitution as Rights Relating to Religion, Cultural and Educational Rights …’²⁶

We have briefly surveyed the dimensions and kinds of rights contained in various declarations, charters and conventions. We have also discussed how various kinds of grounds are associated with claims for rights.