Legal theory of right is based on the concept positive law, law enacted by sovereign authority. Rights are created and enforced by law; they are an artificial creation of the State. However, it is argued that if law is the sole creator of rights, then it should also be able to ‘make corruption a right’ to cite Professor Hocking’s phrase. This reinforces the point of view that law does not create rights but only recognizes, protects and maintains them and it cannot declare any practice as right. This means something more goes in creation and recognition of rights than merely the state’s law. Law as the creator and recognizer of rights depends on various grounds such as human, moral, social, etc. Debate between jurists and Duguit and Krabbe on the content of law has been dealt with in the chapter on sovereignty. Suffice here is to say that law generally recognizes claims of individuals and groups with corresponding duties and presents them as rights. It is in this sense that the description of Wesley Hohfeld of legal rights in terms of a claim right, where one person asserts that s/he has claim on another is relevant. A claim right imposes mutual or corresponding duties or obligations. My right to privacy requires others to uphold that; my right to movement requires that others do not obstruct me, etc.
However, Laski raises a pertinent question, whether the rights there (in the state) recognized are the rights which need recognition.’52 Through this, Laski seeks to bring in a yardstick of evaluation of legal rights. Legal rights are to be compared with a corpus of rights to know whether the rights maintained by a state are the rights that human beings need. This essentially requires conception of ideal rights, rights that are ideally required for development of the human personality. Laski’s remarks that ‘a state is known by the rights it maintains’ is in the context of legal versus ideal rights. It appears then that mere recognized and enforced rights, which the theory of legal rights aims at, may not be the solution for achieving end of human development through rights.
Bentham recognized the utilitarian principle to evaluate the necessity and requirements of legal rights. But Bentham’s utility principle leaves room for ignoring rights of a particular individual if they conflict with maximizing utility of society as a whole. For example, will it be morally acceptable to kill a few members of religious or linguistic minority if it maximizes the utility of religious or linguistic majority as whole in terms of emotional satisfaction?
Barker maintains that the state and its law could be only one source of right, the other being individual personality. He opines that in actual practice, it may not be possible that both the sources work simultaneously. Barker calls such a right as ‘quasi-right’.53 This suggests that there is need to bring correlation between legal and ideal rights.
Notwithstanding the possible gap between the legal and ideal rights, the fact that rights must be recognized if they have to be enforced cannot be discounted. In fact, J. S. Mill in On Liberty mentions that demand for recognition of certain immunities or rights was aimed at setting limits to the power of rulers that could be exercised over the community; the breach of which could lead to specific resistance or general rebellion.54 Bill of Rights or Fundamental Rights are the immunities that are legally provided to the citizens and, in fact, are a check on the authority of the state. Ironically, in terms of legal rights, sovereignty of the state creates and recognizes rights that are a check on its own actions; creation a check on the creator.
To discuss the concern expressed by Laski and Barker in terms of legal versus ideal rights, we now turn to a discussion on ideal and moral rights.
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