Historical rights are based on tradition, usages and customs; they are customary and traditional rights. The claims for the right are based on historical, sociological and evolutionary grounds. Being based on customs, traditions and customs, historical rights pertain not only to the claims of the individuals but also to groups and communities. In short, rights are crystallization of customs and traditions and as such they could be treated as repository of accumulated wisdom. The theory of historical rights does not exclude changes and supports incremental and evolutionary changes that come with the changing requirements of individuals and communities.
The theory of historical rights is inseparably linked with the argument that evolution of law is based on customs and traditions. According to historical jurists and sociologists such as Maine, MacIver and others, laws are derived from customs, usages and conventions. Rights are historically evolved and are part of customs. Theory of historical rights is against rights, which lead to radical or revolutionary rearrangement of social and political structures. Due to these characteristics of historical rights, it found its eloquent support in Edmund Burke. Burke renounced the French Revolution and the Declaration of Rights of Man and Citizen as destabilizing and socially harmful. Beside Burke, social historian Henry Maine, sociologists R. M. MacIver, jurists J. W. Burgess and F. K. Savigny have supported the concept of historical rights.
Henry Maine and R. M. MacIver maintain that laws have historical character and are based on customs, traditions and usages; so is the character of rights. Rights emanate from customary laws and conventional claims. Henry Maine (Early History of Institutions) criticizes jurists for advocating law as the creation of sovereign or determinate authority only. As per jurists, only those laws that are codified by the state stand the status of true law. For supporters of historical rights, law emanates from customary, religious and traditional sources. According to Maine, there has been no determinate authority that could claim to be the sole source of laws and creator of rights. He supported the evolutionary nature of social and political institutions, including law and rights. Customs and traditions have always influenced sovereign authorities.
MacIver stressed on the role of customs in creating rights of the people. He supports the sociological school of jurisprudence and maintains that law does not originate from any person or designated authority in the state, it has its source in social customs, traditions and conventions. This implies that even if law means codified law, it is generally based on customary rights and traditional claims. The state gives expression to law, which means that the state is source of legal enactment and gives formal expression to particular law; it is not the source of law itself. In his words, ‘the social law is expressed in custom, tradition, the thousand forms of use and wont. Part of this in turn is reinforced, reaffirmed, and enlarged as the law of the state.’66 Accordingly, those rights are recognized and enforced which flow from social and cultural conventions and customs.
Edmund Burke, who denounced the French Revolution and the social and political upheaval it led to, tried to project the reactions against it and also against the liberal tenets it was based on. This reaction is known as conservatism and Burke’s Reflections on the Revolution in France is considered the main advocacy of conservatism.
In 1789, The French Declaration of Man and Citizen, reflected triumph of liberal philosophy and conception of natural rights of equality, liberty, security and property. This was a blow to the old order represented by the aristocracy, the first estate and the clergy, the second estate. However, the French Revolution was followed by some kind of hostility from the dethroned classes and the similar interests in the French society. To ward off the hostility against the Revolution, a group of newly emerged revolutionists and militant section within the third estate, known as the Jacobins, sought to put down those who were perceived as the opponents. Their leader, Maximilien Francois Robespierre, declared himself as a champion of the Rights of Man and became leader of the left in the Constituent Assembly and the Jacobin club. In 1792, he demanded that ‘Louis must perish because our country must live’ and asked for the king’s execution without trial.67 It is said that under Robespierre, France was gripped under the ‘tyranny of the Jacobins’ and though he was eliminated, ‘the revolution failed to return to its original ideals.’68 Ultimately, Napoleon Bonaparte’s dictatorship scripted the end of the era of ideals that the French Revolution ignited. Burke’s reaction in a way was against the Jacobin ‘excesses’ and a justification that radical claims for rights could be destructive of social order. Burke supported evolutionary rights. He praised the evolutionary nature of the demands in the Glorious Revolution of 1688 in England.
Tom Paine attacked the English Revolution and Burke’s criticism of the French Revolution. Paine supported the French Revolution by saying that only a republican constitution can secure the rights of man and the same was not possible under the English monarchy. Paine was tried for treason and found guilty though he escaped England. Burke, on the other hand, praised the evolutionary nature of rights that culminated in the English Revolution. He thought that the Glorious Revolution was culmination of the customary rights of the English people, which has found expressions in earlier demands and charters such as the Magna Carta (1215), the Petition of Rights (1628).
Magna Carta was a charter, which granted certain civil and political liberties to the barons and free citizens in England. King John at Runnymede signed it on 15 June 1215 on the insistence of the barons. Its provisions were that no man should be punished without fair trial, that ancient liberties generally should be preserved, and that no demands should be made by an overlord to his vassal (other than those recognized) without the sanction of the great council. In 1628, the Commons gave the Petition of Rights to Charles I. These two documents represent evolutionary demands of rights and were not radical either in their demands or way they were sought to be achieved. Unlike the radical and revolutionary method that manifested during the French Revolution, Burke feels that the English Revolution reflected evolutionary and historically evolved rights. Burke’s support for evolutionary and customary rights is part of his defence of conservative philosophy and his doctrine of prescription. Burke’s doctrine of prescription maintains that one should always have a presumption in favour of the established institution, law and practices. This is because they are ‘entailed inheritance’ and ‘embody collective wisdom of past generations’.69 As such, customary law, established customs, old practices and institutions should not be disturbed. The English ‘common law’ tradition is very much a reflection of basic customs evolved there. In fact, writers and commentators such as A. V. Dicey, Benjamin Constant, Ivor Jennings, K. C. Wheare and others have supported ‘common law’ rights over a Bill of Rights.
It may not be inappropriate to mention here that during the fifteenth century when the controversy between respective claims of papacy and royalist was on, there emerged resistance against the papal sovereignty within the church. It was argued that ‘the Bishops and the Popes held authority as the officers of the Church’ and power resided in the church and not in the pope or bishops. This was based on the premise that the community constituting the church ‘must be capable of governing itself and that its consent is vital to any kind of lawful authority.’70 This was a theory to assert the rights of the people to have their consent and constitutional government in the affairs of the church. This is known as the conciliar theory and one of its advocates was William of Occam. The conciliar theory provided support to the assertion of rights of the people to consent, which, as Sabine says, ‘might apply indifferently to a church or state …’71
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