Theory of legal rights has been mainly associated with Thomas Hobbes, Jeremy Bentham and John Austin. Hobbes started with the conception of natural rights as provided in the state of nature and came to the conclusion that a central authority in the commonwealth, the sovereign or the Leviathan, must protect the most fundamental natural right, right to life or self-preservation. However, to do so, the sovereign becomes the sole source of all other rights. Individual cannot claim rights other than right to life and self-preservation against the sovereign. For Hobbes, law is what the sovereign commands and rights emerge from the command of the sovereign. Wayper says, the ‘Leviathan is the creator of Right and Justice.’44 However, as Wayper says, Hobbes does admit the right to contract, trade, profession and thought. He also admits right to property but, as Sabine says, he maintains that ‘property may be a natural right but the civil law defines property.’45 He does not admit any right to associations that exist within the commonwealth, as they are ‘worm in the body politic’, a danger to the monolithic sovereignty. By advocating supremacy of legal sovereignty and law as the source of right, justice and liberty in the state, Hobbes germinated the theory of legal rights.
However, Jeremy Bentham, who vehemently opposed the doctrine of social contract as a fiction never entered into and the theory of natural rights as rhetorical nonsense, developed the theory of legal rights as part of his utilitarian philosophy. Dicey has called Bentham as ‘the first and the greatest of legal philosophers’, and in Bentham then, we seek the grounds of legal rights. Bentham’s opposition to natural rights emerges from his rejection of the law of nature in favour of positive law. If he does not admit the law of nature, then there is no possibility of natural rights. Unlike Locke, Paine and Green, Bentham accepts only positive law as the source of rights. Law for him is the command of the sovereign and he does not accept ‘natural rights opposed to, in contradiction to legal’.46 Bentham was also opposed to natural rights because, as Norman P. Barry says that there is no correlation between rights and duties. Rights to be correlated with duties require sanctions for failure to perform an action and natural rights do not carry correlated duties. Further, he also felt that the doctrine of social contract combined with that of law of nature and theory of natural rights led to inference that all other governments having any other origin are illegal and can be resisted against.47 Bentham, by rejecting natural law and natural rights, prepared the ground for legal rights. For Bentham, it was not the maintenance of rights that was crucial but the realization of the utilitarian principle of greatest happiness of the greatest number. This could be possible when laws are prescribed for this.
Two of his books, Fragment on Government and Introduction to the Principles of Morals and Legislation are famous and contain his exposition on government, representation, utilitarian principle and principles of legislation. The latter is greatest happiness of the greatest number. Combining his legalist view with the utilitarian principle, Bentham would treat the right of one person as his/her freedom of action, which is guaranteed by a penalty for preventing another person from invading it. This limitation can be justified only by the relative utility in comparison with what would have happened if they were on their own.48 Thus, claims for rights are to be judged on the utilitarian principle. To ensure the greatest happiness of the greatest number, both rights and duties are required. This, in turn, requires legal rights and not natural rights. For Bentham, rights ‘properly so called, are the creatures of law properly so called; real laws give birth to real rights’.49 Bentham admits no right without law or contrary to it or anterior to law.
Having rejected the theory of natural rights and established a legal basis of rights, Bentham admits right to security. On the basis of the need for security to the individuals, he justifies property rights. Security of property is a major condition of achieving greatest happiness. Though rights cannot be maintained against the State, Bentham ‘justifies opposition to the State if that opposition will produce less pain than continued obedience.’50 In fact, Bentham to some extent allows the same rights that the advocates of natural right demand. Right to property and resistance to the State, in essence amounts to the same thing.
John Austin in his The Province of Jurisprudence Determined (1832) has propounded the theory of legal sovereignty and positive law. Sovereign, being the sole source of law, also becomes the source of rights. Legal rights imply relative duty for another person or group of persons. This requires enforcement of the right by enforcing the relative duty. Austin, like Bentham, also sees rights of one as correlated with duties of another and this requires enforcing duty by sanction.
Professor D. G. Ritchie, in his book Natural Rights, has attacked the theory of natural rights. He has stressed on the importance of and need for correlation between rights and enforceable duties or obligations. He defines legal right as ‘the claim of one individual upon others recognized by the state.51 Legal theory of rights is based on recognized rights, which are enforceable.
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