Thomas Paine and T. H. Green have sought to justify claim of prior rights of the individual, i.e., rights independent of recognition of society and the state, based on teleological grounds. This means individuals have inherent moral rights based on dignity, need for self-development and self-realization as human beings.
Paine wrote the celebrated book The Rights of Man (1791), which contained a refutation of Edmund Burke’s criticisms of the Revolution in France. Paine was indicted for treason in England for this book, as he had supported the French Revolution and appealed for overthrow of the British monarchy.34 Paine advocated overthrow of English monarchy because he thought the rights of man could be better secured by a republican constitution than by English government under monarchy.
Though Paine supported natural and prior ‘rights of man’ he was opposed to the doctrine of social contract. He thought this amounted to some type of permanent binding on all generations and would impede progress. Instead, Paine sought to build theory of natural rights on the basis that they are ‘pre-existing in the individual’, that is to say, the rights of man are inherent in the very personality of the individual; almost like present day insistence on human rights. The individual carries these rights in the civil society as part of inherent rights of personality for which social contract is not required. In The Rights of Man, Paine says, ‘the end of all political associations is the preservation of the rights of man, which rights are liberty, property, and security … the right of property being secured and inviolable, no one ought to be deprived of it …’35 We can see that both Paine and Locke list similar natural rights, i.e., rights of life (security), liberty and property. Though, Locke invokes a contractual basis for admitting the inviolability of these rights in the civil society and by the state, Paine argues on the basis of inherent rights of individual personality.
T. H. Green, a supporter of positive liberty, a provides the basis for reformist liberalism and welfare state. He ‘revised the conception of the individual; and in particular . individualist account of how individuals come to have rights.’36 Locke’s Liberalism supported conception of an indiividual who is self-contained, atomist and a carrier of natural rights. Green’s liberalism invoked conception of an individual as carrier of natural rights because these rights are prior to society and not because he is an atomist or self-contained. Green stressed that rights of an individual have meaning because individuals are to be seen as social beings and bound by common good for enjoying rights. Freedom for him, ‘is a positive power or capacity of doing or enjoying something worth doing or enjoying and that too, something we do or enjoy in common with others.’ If so, then recognition of this freedom cannot be admitted or sustained on the conception of Lockean premise of an individual who is self-contained, atomist and a carrier of natural rights. Green’s individual is socially and ethically related to a ‘larger common good’, to use Tony Walton’s phrase, for enjoying freedom.
Green views the rights of human beings tied up with two things—one, with moral character of individual-self and second, with common good. Moral character and common good provide bases of individual rights. And if moral character is linked with positive power or capacity, it requires realizing this ‘in common with others.’ Individual rights are dependent on social recognition but that recognition emanates from moral consciousness of the community, which is common good. According to Tony Walton, ‘For Green, rights could not be explained in terms of an individual’s ‘natural’ freedom … or pre-social individual autonomy, … On he contrary, the extent of a person’s rights is sanctioned and recognized by the common good which is their source and foundation.’37
Implications of Green’s conception of individual rights as embedded in social recognition based on moral claim are: (i) rights should be enjoyed in common with others and not as atomistic and a self-contained person that Lockean liberalism advocates, (ii) common good being source and foundation of rights, requires that basic resources of society should be equally available to all for enjoying the positive power or capacity by each individual, (iii) while Lockean conception of natural rights admits inalienable and prior rights vis-à-vis society and state and Hobbes’s and Bentham’s conception of rights ground rights in the recognition of the state and the sovereign, Green grounds rights in the moral character of an individual and recognition of the community which he calls ‘Natural Rights’, (iv) while Locke’s conception requires noninterference by the state in operation of the rights of life, liberty and property, Green’s conception of rights entails state’s pursuing common good for realization of rights.
Natural rights and contemporary debate: Rawls and Nozick
Two contemporary theorists, John Rawls (A Theory of Justice) and Robert Nozick (Anarchy, State and Utopia), have based their formulations of rights of individual and justice on social contract and natural rights, respectively. Rawls has used the idea of deriving rights from social contract to present his views of an equalitarian social order. He takes the example of hypothetical individuals who are unaware of what sort of individuals they are (selfish and self-contained or social; competitive or cooperative; possessive or sacrificing) or what position in society they would occupy. Then Rawls says, ‘if these hypothetical individuals were devising a structure for future society … would agree that each person should have equal right to the most extensive total system of equal basic rights which are compatible with a similar system of liberty for all.’38 Rawls seeks to argue that when individuals enter into a social contract, the rights that would emerge from it would be based on the principle, which protects the individual from the oppressive effects of others. And these would include, as Clayton and Tomlinson say, ‘conventional civil liberties such as freedom of speech, freedom from arbitrary arrest, freedom of conscience and freedom to hold private property’. Incidentally, these are also the rights that natural right theorist advocates, right to life or security, liberty and property.
Drawing from Locke’s inviolable property rights, Robert Nozick has developed the concept of prior and inalienable individual rights. On this basis, Nozick attacks the concept of equalitarian justice and welfare state. He contends that individual rights have priority over other principles, such as equality. Based on inviolable property rights, Nozick seeks to develop an entitlement theory of people’s natural assets in the sense that people are entitled to the fruit of their assets or skills and to use them to their advantage.39 For example, he argues that a doctor is entitled to his/her skill and should not be robbed of the fruit of entitlement. He rejects the argument that health being a fundamental service should not be subject to selling and purchase and should require regulation of doctors, as he would treat skills not as common assets. Nozick’s contention that liberty is incompatible with and has priority over equality and every individual has exclusive rights in him and no rights in anyone else (entitlement theory), means every individual has inviolable right to liberty and property. As Clayton and Tomlinson point out, for Nozick ‘rights are ‘side constraints’ which place moral limits on goals which may be pursued by us in the sense that whatever we do, we must not violate the rights of other’.40 Thus, entitlement theory means everyone has exclusive right in himself/herself and in no one else. Implication of this way of looking at rights is that no one should be directed to pursue a goal that violates the exclusive right, e.g. the doctors directed to use their skill for others by regulation.
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