Rights as claims or entitlements imply legal relationship between the individuals or the groups and the State or amongst the individuals and groups themselves. Morality and immorality of a claim or entitlement may not have to do anything with legality or illegality of the same thing. For example, till the Child Labour (Eradication and Rehabilitation) Act or for that matter, Immoral Traffic (Prevention) Act, were passed in India, both child labour and women trafficking were inhuman in the sense that they were against the inherent dignity of children and women, respectively. But they became illegal and hence criminal only after they have been legally banned. As such, an act or practice may be inhuman or immoral but may not be illegal and hence criminal.
Human Rights, being the inherent right of human persons must have been inherent ever since the two-legged social animal has walked on earth. But to be legal, it must be recognized and backed by state sanction. Thus, we have human, legal and moral rights. The human and moral rights can be the basis for legal rights.
Wesley Hohfeld in his Fundamental Legal Conceptions as Applied in Judicial Reasoning has identified four types of legal relations. He prefers to describe these as entitlements.14 Firstly, there is a claim right where one person asserts that s/he has claim on another. A claim right imposes mutual or corresponding duties or obligations. For example, a person’s right not to be treated as ‘untouchable’ requires and obligates another person to uphold this claim. Secondly, a liberty right authorizes a person to do as s/he pleases; at liberty to do it. For example, to use a pedestrian or a road (of course not toll roads) or smoke (except where ‘No Smoking’ zone is declared) are liberty rights. Thirdly, powers as rights are legal abilities or empowered or enabled positions. It empowers someone to do something, for example, to vote (voting right), to get elected (right to occupy public office), to get employment (right to equal opportunity in employment), etc. Fourthly, Hohfeld mentions immunities, which protect a person from the power of another. For example, the right of the elderly not to be drafted/conscripted by the state into the army; diplomatic immunity of dignitaries in host countries, etc.
Hohfeld is of the view that right in the strict sense should be confined to a claim right. This is because it imposes corresponding duties or obligations on another. Possession of a claim right consists of being legally protected against another’s interference. A liberty right poses no such corresponding duty or obligation.
Discussion of forms of rights does not necessarily provide inputs on the content of rights in terms of moral or legal content. Are rights moral entitlements or legal relationships? Positivists or those who take a legalist position argue that there is no relationship between law and morality. Right in terms of legal aspect means legally defined relationship between two or more persons and between the State and its citizens. It is argued that in case of any conflict between right and other claims, the former should prevail.
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