What is a Right? Theories of Rights

A right, in its most basic sense, is a justified claim or entitlement that an individual or a group holds against others or society. It implies a corresponding duty on others to respect or fulfill that claim. Rights can arise from various sources, including law, morality, social customs, or natural law.

Theories of Rights

• Natural Rights Theory: This theory posits that rights are inherent to human beings by virtue of their nature or reason, independent of government or societal recognition. These rights are often considered universal, inalienable, and discoverable through reason. Thinkers like John Locke are central to this theory, emphasizing rights to life, liberty, and property.
   
• Legal Positivism: Legal positivists like H.L.A. Hart argue that rights are solely created and recognized by valid legal rules within a specific legal system. Rights exist because the law says they do, and their content and scope are determined by legal enactments, judicial decisions, and established legal procedures. Morality and natural law are seen as separate from the definition of legal rights.
   
• Will Theory (Choice Theory): Associated with thinkers like H.L.A. Hart (in his earlier work), this theory emphasizes the power of the right-holder to control the actions of others concerning the object of the right.
   
• Interest Theory (Benefit Theory): Championed by Rudolf von Jhering, this theory defines a right as a legally protected interest. The law exists to protect and promote various individual and collective interests.
   
• Social Contract Theory: Philosophers like Jean-Jacques Rousseau and John Rawls argue that rights are derived from a hypothetical social contract. Rights ensure individual freedoms and protections within a structured society.
   
• Historical/Evolutionary Theories: Linked to historical jurisprudence, these theories see rights as evolving through social customs, traditions, and historical struggles, recognized over time through societal development.
   

Hohfeld's Analysis

Wesley Newcomb Hohfeld provided a framework of four fundamental jural relations, each with its opposite and correlative:

Jural Relation	Correlative	Opposite
Right	Duty	No-Right
Privilege (Liberty)	No-Right	Duty
Power	Liability	Disability
Immunity	Disability	Liability

• Right: A claim that one person has against another, who has a duty to act or refrain from acting.
  Example: Right to payment under a contract.
   
• Privilege (Liberty): The freedom to act or not act without legal interference.
  Example: Privilege to walk on a public sidewalk.
   
• Power: The ability to alter legal relations.
  Example: A judge issuing a judgment; a minor lacks such power (disability).
   
• Immunity: Freedom from others altering one's legal relations.
  Example: Sovereign immunity from foreign jurisdiction.

Human Rights and Animal Rights

• Human Rights: Rights inherent to all human beings regardless of status. These are universal, inalienable, and indivisible. They are grounded in the recognition of human dignity and supported by documents like the UDHR and various international covenants.
   
• Animal Rights: A developing concept asserting that sentient animals are entitled to rights such as life, freedom from suffering, and exploitation. Theories supporting animal rights stem from utilitarianism and deontology, with debates centering on sentience vs. rationality as criteria for rights.

Personality
In law, personality refers to the legal capacity of an entity to have rights and duties, and to participate in legal relations. It is a legal construct, not necessarily coextensive with biological personhood.

• Natural Persons: These are human beings who are generally recognized as having full legal personality from birth until death. They can enter into contracts, own property, sue and be sued, and possess a wide range of rights and duties. However, legal capacity can be limited for certain natural persons (e.g., minors, individuals with certain mental incapacities).
• Legal (Juristic) Persons: These are non-human entities that the law recognizes as having legal personality. This allows them to function as if they were individuals in certain legal contexts.
  
  Common examples include:
  • Corporations: Recognized as separate legal entities from their shareholders, with the ability to own property, enter into contracts, and be held liable.
  • Partnerships: In some jurisdictions, partnerships are treated as legal entities for certain purposes.
  • Trusts: While not always considered legal persons in all respects, trustees hold property on behalf of beneficiaries, creating a distinct legal relationship.
  • Universities, Charities, and other Associations: Depending on the legal framework, these entities may be granted legal personality.

The concept of legal personality is crucial for structuring economic and social activities. It allows for the creation of organizations that can act independently and have continuity beyond the lifespan of their individual members. The criteria for granting legal personality and the scope of rights and duties it entails are determined by law.
  Property, Possession and Ownership
These three terms are related but distinct concepts in law:

• Property: A bundle of rights in relation to a thing (tangible or intangible). Includes the right to possess, use, manage, enjoy, and dispose of it, and exclude others.
• Possession: Actual physical control or occupation of a thing, with the intent to hold it as one's own. Can be:
  • De facto possession: Actual physical control.
  • De jure possession: Possession recognized by law.
  • Constructive possession: Legal right to control, e.g., owning a key to a house.
• Ownership: The most comprehensive right in relation to property, including the legal title and full bundle of rights. Ownership may be limited by law or agreement.

The distinction between these concepts is important in various legal contexts, such as determining liability, transferring rights, and resolving disputes over property.
  Negligence
Negligence is a tort that arises when a person fails to exercise reasonable care, causing harm. The elements include:

1. Duty of Care: A legal obligation to avoid causing harm to others.
2. Breach of Duty: Failing to meet the standard of care expected in the circumstances.
3. Causation: The breach caused the harm:
   • Factual Causation: The harm wouldn't have occurred but for the defendant's actions.
   • Legal Causation: The harm was a foreseeable result of the breach.
4. Damages: Actual harm or loss suffered by the plaintiff.

The "reasonable person" standard is used to judge whether the defendant acted negligently.
   Punishment: Retributivism-weak and strong, Consequentialism, Restoration
Theories of punishment explain why penalties are imposed:

• Retributivism: Punishment is justified because the offender deserves it.
  • Strong Retributivism: Punishment is morally obligatory and must be proportionate to the crime.
  • Weak Retributivism: Recognizes desert but allows other factors like deterrence to influence punishment.
• Consequentialism: Punishment is justified by its beneficial outcomes:
  • Deterrence: Preventing future crimes by discouraging behavior.
  • Rehabilitation: Reforming the offender.
  • Incapacitation: Removing the offender's ability to reoffend.
• Restoration (Restorative Justice): Focuses on repairing harm through dialogue and reconciliation.
  • Addressing the needs of the victim.
  • Holding the offender accountable.
  • Healing relationships and involving the community.
     

Theories of Justice – Utilitarianism, Libertarianism, Concept of Equality and Social Justice
Theories of justice attempt to define what constitutes a just society and how resources and opportunities should be distributed.

• Utilitarianism: This theory, most famously associated with Jeremy Bentham and John Stuart Mill, argues that the morally right action is the one that maximizes overall happiness or "utility" for the greatest number of people. In the context of justice, utilitarianism would advocate for laws and policies that produce the greatest good for the greatest number, even if it means some individuals or groups may not receive what they might consider ideal. Different forms of utilitarianism exist (e.g., act utilitarianism, rule utilitarianism), but the core principle is maximizing aggregate well-being.
   
• Libertarianism: This political philosophy emphasizes individual liberty and limited government intervention. Libertarians generally believe in strong protection of individual rights, including property rights and freedom of contract. They advocate for minimal state involvement in the economy and social life, arguing that individuals should be free to make their own choices as long as they do not infringe upon the rights of others. Key thinkers include Robert Nozick, who emphasized entitlement theory based on just acquisition and transfer of property. Justice, from a libertarian perspective, primarily involves respecting individual rights and enforcing contracts.
   
• Concept of Equality:
  • Formal Equality: This principle suggests that everyone should be treated equally under the law, without discrimination based on irrelevant characteristics. It emphasizes equal application of rules.
  • Substantive Equality: This goes beyond formal equality and focuses on achieving equal outcomes or opportunities. It recognizes that historical and social inequalities may require differential treatment to level the playing field. This might involve affirmative action or targeted policies to address disparities.
  • Equality of Opportunity: This emphasizes that everyone should have an equal chance to succeed, regardless of their background. It focuses on removing barriers to opportunity but does not necessarily guarantee equal outcomes.
  • Equality of Outcome: This aims for a more equal distribution of resources and outcomes in society, often requiring more significant state intervention to redistribute wealth and opportunities.
     
• Social Justice: This is a broader concept that encompasses fairness and equity in the distribution of resources, opportunities, and privileges within a society. It addresses systemic inequalities and injustices based on factors such as class, race, gender, and other social categories. Social justice often involves advocating for policies that promote equal opportunity, reduce disparities, and protect the rights of marginalized groups. Theories of social justice draw from various philosophical traditions, including egalitarianism (emphasizing equality), rights-based approaches, and critical theories that analyze power structures and social inequalities. John Rawls' theory of "justice as fairness," with its emphasis on the difference principle (allowing inequalities only if they benefit the least advantaged), is a significant contribution to contemporary social justice thought.
   
• Effectiveness of Precedents: Precedent, also known as stare decisis (Latin for "to stand by things decided"), is a fundamental principle in common law legal systems. It means that courts should follow decisions made in previous similar cases when deciding new cases.
  
  The effectiveness of precedents is a complex issue with both strengths and weaknesses:
  • Effectiveness (Advantages):
    • Certainty and Predictability: Following precedents makes the law more predictable and allows individuals and businesses to understand their legal rights and obligations. This promotes stability and facilitates planning.
    • Consistency and Uniformity: Precedent ensures that similar cases are treated alike, promoting fairness and reducing the perception of arbitrary decision-making.
    • Efficiency: Relying on established precedents saves time and resources for courts, as they do not need to re-litigate settled legal principles in every case.
    • Stability and Respect for the Law: Adherence to precedent lends stability to the legal system and fosters respect for judicial decisions and the rule of law.
    • Development of Law: While precedent promotes stability, it also allows for the gradual and incremental development of law as courts distinguish or overrule previous decisions in light of new social conditions or evolving legal understanding.
    • Guidance for Lower Courts: Higher court precedents provide binding guidance for lower courts within the same jurisdiction, ensuring a hierarchical and consistent application of the law.
  • Limitations (Disadvantages):
    • Inflexibility: Strict adherence to precedent can make the law slow to adapt to changing social needs, technological advancements, or evolving moral values.
    • Perpetuation of Errors: If a past decision was wrong or based on outdated principles, following it can perpetuate those errors.
    • Complexity and Volume: The sheer volume of precedents can make it difficult to identify and apply the relevant ones, leading to legal uncertainty and increased litigation.

Written By: Om Prakash Tiwari , law student at GGSIPU, Delhi