The theory of social welfare rights holds that rights should be the conditions of social welfare. As such, the claim for rights must be based on consideration of welfare, justice, equality and common good. While theory of natural rights is associated with liberal tradition, theory of legal rights with juristic traditions, theory of moral–ideal rights with idealist tradition and theory of historical rights with conservative traditions, theory of social welfare rights may be associated with positive liberalism and democratic–welfare ideas. Does it require rights of individuals for their development or does it seek rights as part of a common whole where individual shares rights in terms of a common minimum denominator?
Tenets of social welfare rights could be found in the writings of utilitarian theorist Bentham, positive liberals Hobhouse, Barker, Tawney, social democrat Laski and some recent writers such as Roscoe Pound and Chafee.
Bentham’s utilitarian principle, ‘greatest happiness of the greatest number’, as criterion of common good, is also a basis for rights. Claims for rights as per greatest happiness of the greatest number entails duties as well. The principle of greatest happiness of greatest number implies that rights are to be adjusted to the requirement of social or at least majoritarian welfare. Social welfare and general betterment in terms of happiness (because naturally all individuals tend to seek happiness and reject pain) is condition for rights. Any claim for right that does not conform to or is against social welfare/common good is not recognized by society. Two things are implied in this—one, that rights must have a socially recognized base, and second, that there must be corresponding duties for the rights provided. Rights are not based on the conception of the individual as separate or atomized entity. It gives primacy to socially useful conditions that individuals enjoy in the interest of common good.
Common good or general welfare may be understood as what Rousseaus General Will criteri on or Bentham’s greatest happiness of the greatest number criterion or Barker’s fraternity criterion, or Chafee’s balance of interest criterion would imply. Rousseau’s general will admit those rights, which are subsumed under the requirements of civil society, the General Will. Bentham’s principle requires rights that are based on the greatest happiness of the greatest number. Chafee’s principle implies that rights should be socially expedient and ‘determined by the balance of interests under the prevailing social conditions’.72 Barker’s fraternity principle of distribution of rights involves distribution of common equipment—material and mental (road, library, education, etc.) for common enjoyment.
Laski is considered a very ardent supporter of the theory of social welfare rights. He used the principle of utility and public welfare as the basis for supporting the claim of rights of individual. Laski defines rights as ‘those conditions of social life without which no man can seek, in general, to be his best.’ This means, rights are socially linked conditions that help realization of individual’s best self. Socially linked conditions mean claims, which are admissible to each but are relative to the others. He elaborates this when he says, ‘in any state the demands of each citizen for the fulfillment of his best self must be taken as of equal worth; and the utility of a rights is, therefore, its value to all the members of the State.’73 Laski is of the view that rights of the individual should not be against public welfare precisely because public welfare subsumes individual’s welfare as well. This requires maintaining a social condition in which the best self is realized and also individuals subordinate their self-interest to public welfare.
Laski also argues from the perspective of equal distribution of opportunities and absence of privileges. He was apprehensive that concentration of economic privileges and opportunities in the hands of a few people, as could be the case in capitalist economy, would be inimical to equal claim of all. He favoured a condition in which benefits resulting from the exercise of power of the state should be equally accessible to all. In his State in Theory and Practice, he says, ‘The state … must postulate the equal claim of its citizens to the benefits which accrue from its exercise of power …’74 There should not be principles that exclude a group of individuals from enjoyment of certain rights. For example, Laski would agree that one should not be so privileged to purchase some one and the other should not be so deprived to sell oneself. He gives the most eloquent expression of equal rights when he says ‘…in any adequate view of citizenship a State which refuses to me a thing it declares essential to the well-being of another is making me than a citizen.’75
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