Critical evaluation

Theory of historical rights denounces claims of natural right theorists and also the legal right theorists and gives primacy to customary and traditional laws and rights. It claims that neither natural law nor the State can be a source of rights. The State at most gives effect to some of the rights, which are historically and traditionally available. It favours a doctrine of rights that could be available to individuals and also communities. Theory of natural rights is primarily a theory of individual rights. Theory of legal rights may admit rights of both individuals and groups, as the concept of juristic personality would apply to both. However, theory of historical rights may not be acceptable in entirety. Some of the customary laws and practices that provide ground for rights, e.g. civil and social rights such as to marry in one’s caste or religion or male right to inherit ancestral property, etc., are less controversial. But consider some of the traditions and customs that either clash with the basic tenets of human dignity or are against gender equality. For example, Aristotle’s justification of slavery based on tradition; the practice of untouchability in India (practice of caste/group exclusion from or discrimination against social, civic, religious and cultural intercourse by others); the practice of Sati (practice of widow immolating on deceased husband’s pyre), no coparcener right for women in inheritance, absence of right of widow-remarriage, etc. are harmful and unacceptable customs. In fact, during the British period through social legislation many reforms were introduced for abolition or removal of those customs and practices that were against the tenets of human dignity or individual self-respect. Post-independence constitutional and statutory provisions have heralded a new a era of social reform and social legislation that have provided safeguard against socially harmful customs. History has generally been a double-edged sword, it could be a guide but equally misleading.

Any claim merely on what has evolved tends to forget one crucial aspect—how these practices and customs have come to be what they are. It does not take into account the power relations or relation of dominance and subjection where a particular practice benefited some and harmed others. The theory tends to become a justification of status quo and may provide functionalist justification (that everything that exists or survives has some useful function).