MAIN ARGUMENTS

1. The current dominant conception of ‘right’ is not self-evident, but stretches back only
to the 17th century, filled with contradictions and paradoxes.
2. A Marxist exploration of an alternative conception of a right or a society in which the
concept of right is not central can provide a more satisfactory conception of a right.

ARGUMENT 1
‘The current dominant conception of ‘right’ is not self-evident, but stretches back only to
the 17th century, filled with contradictions and paradoxes.’

We just naturally conceptualise human relations in terms of rights, forgetting that almost all
non-western and most pre-modern European societies did not do so. Not all were
despotic/autocratic or murderous, they had possessions and occupations and, enjoyed many
liberties characteristic of free societies – yet these were not termed as rights and claims.
Example: Athens too, cradle of western democracy, did not have the concept of a right.

Roman society

‘Rights’ first developed systematically in Rome, where the private realm, its relative
inviolability and equality in the public realm also first developed. Rights, law and justice were
inseparable. Rights were created by law and law was the community’s conception of justice.
Concept of a right was inseparable from that of right (a right consisted in enjoying what was
right) and justice secured a man’s rights by giving him his right.

A Roman cive had several rights – the right to property, the right to discipline/exercise power
over the family, enjoy access to common land, etc. These belonged to him not as an individual,
as the head of the family (pater familias). The family was the primary subject of rights. These
rights were conferred to realize the community’s common goals/ends/purposes.

Rights had several constraints, restricting depth and scope. Their sources were custom, usage,
tradition – none were inferior. Rights did not imply absolute control, as one had a right to use
but not own certain things. Romans were influenced strongly by the naturalis ratio, that certain
things could not be individually owned, as that ran counter to its ‘natural purpose’ and was part
of rex extra commercium.

As the language of rights was limited in scope, they were inapplicable to familial/political
morality. They pertained primarily to the civil society, not to State or family, governing
relations between individuals.

Feudal society

During centuries of feudalism, individuals acquired rights by virtue of being part of specific
groups/entering into certain types of relationships. The concept of duty dominated these
societies, not that of right. The king and his subjects were in a quasi-contractual and unequal
relationship, and acquired reciprocal and limited duties. Each party was expected to act in a
certain manner because he had a duty to do so, not because the other party had a right to require
him to act that way.

Assertion: Duties generated rights, duties were logically prior to rights. Social relations were
considered to be conceptualized in terms of duties. Private and public relations were never
separated, every private right had a public dimension, implying public and institutional
obligations.

In operation: Right to property might require military service/attendance at the Lord’s court.

FOUR FEATURES OF RIGHTS

1. Subject of right

Modern conception of right regards individuals as its primary bearer. Group rights are
derivative, reducible to those of their members. Individuals are socially demarcated and defined
differently in each society, by the process of individuation.

Example: Ancient Athenians conceptualized an individual as a man taken together with his
land and political rights. Till the end of the Middle Ages, a craftsman’s tools were considered
as part of the individual. For the Hindus, the set of social/caste relations were inseparable and
part of the individual.

17th century writers see the individual in narrow terms: the naturally given biological
organism, neatly encapsulated in the body, constitutes the individual. Each human being is thus
a self-contained unit, with the limits of his body as the limits of his self. Everything outside
his skin is the external world and is not an integral part of his self, everything within is internal
and an indivisible part of his self. The centre of each individual is within himself.

Assertion: The modern naturalist/physicalist conception of the individual prioritises two high
moral values: life (continuation of the body in time) and liberty (unhindered movement of the
body). The individual is deemed to be real as long as he inhabits a living body. Physical, not
mental, constraints are mostly recognized by this moral imagination.

In operation: Freedom is restricted only when one is physically restrained from moving as
one pleases, not when ideas and beliefs are conditioned and moulded. Helping a child frustrated
from developing his abilities for want of money is not seen as a pressing moral problem that
requires urgent redress, like prevention of death.

2. Object of right
Natural world was reduced to material world and a collection of material objects and got
desacralized. It was no longer a quasi-rational and moral whole, or a world of autonomous
living beings with dignity, but a material world of ‘dead matter’, which the sovereign man
could plunder at his will. Everything in the natural world is an object of right, capable of
alienation. In earlier centuries, property meant the right to revenue, not the right to a thing
(rights in changed to rights to). Generally, owners of large pieces of land in substantial estates
were not free to sell them. Land, which was earlier invested with rights and subject to
constraints, could now be freely bought and sold. From the 17th century, right to property comes
to imply the right to dispose of things as one pleases – absolute and exclusive right to own, use
and alienate things. Common land disappeared, was privately divided up.

Human being was reduced to a collection of capacities and powers, which could be alienated
and made objects of rights. For this, two conceptual conditions must be satisfied:
1. He himself must be presumed to have a right to them – view them as his property.
2. He must be presumed to be separate from them, so that he does not sell/alienate himself
when he sells/alienates them.

Important: To satisfy these two, man must be defined in the barest manner – so that his
freedom is not compromised when his abilities, skills, powers are placed at another man’s
disposal.

Question: What is essential to human identity such that its alienation is his alienation, and his
loss of control over it amounts to a loss of his humanity?

Answer: Interrelated capacities of choice and will are essential, as bases of human dignity.
Because of reason and will, man is capable of freedom and self-determination. As long as he
is not physically overpowered/deprived of choice and will, he is autonomous; his actions are
uniquely his and his sole responsibility. Circumstances, alternative options, background and
upbringing are stripped away from the individual, showing that he exercises unconditioned
choice and will as a sovereign man. Here, his alienable body and mental activities and powers
are things he possesses, his properties, his possessions. If ‘he’ referred to the totality of his
being, and not just capacities of choice and will, his powers and activities would be an integral
part of the self, constitutive of the self. They would be inalienable.

Assertion: With this conception of the individual, certain rights, such as the right to life,
property, liberty, came to be most important. They were defined narrowly, in negative terms.
These were rights of protection, of non-interference with rights.

In operation: The right to life meant the right to be free from physical harm, but not the right
to material sustenance/healthy environment, etc. Right to be free did not include freedom from
arbitrary will of employers. Right to property did not include right to possess at least some
property
In the second half of the 19th century, social and economic rights were added – rights of
provision (of material sustenance, well-being, employment, etc). Positive contribution by taxes
and other contribution to resources were required from citizens to meet the requirements of
those in need. This warranted a more positive and active role of the Government and the nature
of the state. Here, citizens were required to help as a matter of duty entailed by their moral/legal
rights, not charity. Thus, it was no longer a collection of self-contained and atomic indvidiuals
united by allegiance to a common authority, but a community of interdependent individuals –
concerned about how others live – a political community, not a mere civil one.

3. Relations between subject and object of the right

a. A right is a claim. This claim is recognized and respected by others, and wholly
independent of others’ personal feelings towards the right-bearer, but requires a pattern
of behavior from them.
b. The claim has the nature of a title and its bearer is entitled to make it, based on
recognized procedures.
c. The title is conferred upon him by the established legal authority. When challenged,
the title-bearer points to a specific law which has given him the title. Tradition, custom,
usage
d. To have a right is to be free to do what one likes with it, in conformity with its grant.
The modern concept of a right has minimum restraints on it.
e. One can do what one wants with it within legally prescribed limits, and others are
excluded from access to it. Concept of exclusivity has been built into the modern right.
f. Right not only excludes others but requires a specific set of of services from them and
imposes hardship on them. They are required to refrain from interfering with it but also
make financial contributions towards maintaining state apparatus to create and protect
these rights. They impose a high moral burden (Example: a poor man cannot steal
money from his wealthy neighbor to buy medicines and save his dying wife).

Rights are source of benefits and burdens. Only benefits the bearer by imposing legal
disabilities, loss of liberty, suffering, moral cultural and financial burdens on others.

Assertion: Equality of rights is an ambiguous and misleading expression.

Explanation: Some rights make far greater demands on others and are therefore costlier. Those
in a position to enjoy those rights impose far greater burdens upon their fellow-men than those
who are not. Modernity ignores nature, structure and consequences of rights, treating them as
homogenous entities of identical weight. Burdens imposed by rights exercised by all are easier
to bear than those restricted by a few.

In operation: Right to life is enjoyed by all, burden is distributed fairly, but right to property
has no meaning for those unlikely to own it.
 g. A right is legally enforceable. The state stands guard over a specific area of action and
punishes those who transgress it. A right is a form of power, a share in the exercise of
state sovereignty, as the coercive machinery of the state is at the disposal of the right-
bearer.
h. Right is a formal title and thus its possession is not dependent on one’s ability to
exercise it. (Example: Man possesses and enjoys the right to life even when sick and
dying.) One can possess it even if one cannot do anything with it. The concept is biased
against those who lack resources to exercise the right.

4. Place of right in moral and political life

Men started to define themselves as free individuals, with no ties to others save those they
chose to establish and no duties other than from these ties. Each man was to look after his own
interests and devise ways of protecting them from invasion by others who were
indifferent/hostile. Group of equal, self-assertive, self-interested, mutually suspicious
individuals requires the modern state to hold them together. The modern state, with centralized
authority, monopoly of violence and impersonality, replaced earlier forms of community. It
maintains order, through a system of rights and obligations created by law, underpinned by
threat of violence. Law-created morality is the dominant form of morality, with a system of
rights, obligations and duties.

Assertion: Respect for others here is confined to regard for one’s own rights. A rights-based
society rests on civil morality (law) and doesn’t require deeper moral motivation.

Explanation: Due to heavy reliance on rights in this society, men feel uneasy when they do
good to others that is not apparently entailed by the latter’s rights. They seek to justify their
conduct by attributing it to duties entailed by moral/natural rights – unable to explain the
‘ought’ of their conduct except with reasons of charity/respect of others’ rights. They do not
express these acts as saying they love their fellow men, feel guilty about undeserved privileges,
feel sense of solidarity. They have internalized that a morality not based on rights is somehow
inadequate and that every duty presupposes a right. Conception of natural rights arises from
the inability to conceive of moral relations in any other sense than rights.

Rights acquire a monopoly of moral legitimacy; the most basic human needs require a right to
generate moral response. Almost all types of morally desirable conduct are reduced to duties
entailed by others’ rights. Duties are responses to rights. We are afraid that the state will
arbitrarily curtail our rights, so we feel the need to show we have rights. To prevent regress,
we source these rights in indisputable but tenuous sources of natural law, God, nature, etc.

In operation: A can ask/expect B to do something only if A has a right to require that of B.

Without it, B has no duty to do it.

Examples: Parental love is reduced to a duty, which is a demand originating from a child’s
right. The family is not civil society and cannot be reduced to civil morality.
ARGUMENT 2: MARXIST CRITIQUE

‘A Marxist exploration of an alternative conception of a right or a society in which the

concept of right is not central can provide a more satisfactory conception of a right.’

According to Marx, a right is the product of ideological rationalization of a capitalist society,

where men are required to be both subjects and objects. This is the dualistic theory of man:
where the living man, who possesses powers and capacities is a saleable commodity, and his
abstract juridical personality is inviolable.
- Object: Labour power is the sole source of surplus value, compelled to view men as
commodities
- Subject: Based on voluntary transactions between free individuals, has to conceptualise
man as free, self-determined being

Critique of modern theory of rights

Bourgeois society says that formal and abstract juristic person is invested with rights that are
formal and abstract. Equality in capitalist society is equality of abstract persons, not concrete
human beings. It doesn’t recognize how people are differently placed and have different
capacities to exercise these rights they possess. Formal equality of rights legitimizes reality of
inequality.

Men are alienated from their fellow men and unity of human species. Capitalism isolates and
privatizes men. It presupposes isolated aggressive men pursuing their own narrow and
exclusive interests. Modern rights theory is a juristic expression of this, drawing a boundary
around each individual which others are forbidden to cross. As society is divided into small
clusters, class reality is concealed. Workers forget that, while they may switch employers, they
are chained to the capitalist class, that his personal freedom is determined by class slavery.
They think of themselves as distinct individuals, affecting class consciousness/unity, in pursuit
of self-consciousness as an individual social being.

Lack of clarity in Marx interpretations

Bhikhu rejects two conclusions that Marxists often draw.

Conclusion 1: Rights are merely instruments of class domination, creating the illusion of
genuine equality between free and self-determining individuals. They have little value and
aren’t worth fighting for, their disappearance is a boon as they give a false sense of security to
the working class

Response: Bourgeois legal theory is inherently self-contradictory – must rest on egalitarian

premises and draw inegalitarian conclusions (idealise freedom and justify wage-slavery). To
believe that all men in fact enjoy equal rights is to believe the illusion that formal equality
amounts to substantive equlaity. But just because formal and substantive enjoyment of rights
are different, doesn’t mean that the rights in themselves are illusions. Doctrine of equal rights
is very valuable and needs to be fought for. The theory of equal rights can be turned against
the bourgeois classes by exposing its inequalities and giving it new content.

Marx himself never saw rights as illusions; they were useful in restraining the state, subjecting
bourgeois to certain norms, and providing conditions under which working class can organize
and grow.

Conclusion 2: Rights originate from material scarcity and unsocial individuality, so rights have
no place outside of a capitalist society. A social and non-aggressive communist society doesn’t
require rights to protect individuals against each other

Response: Marx failed to properly define and distinguish between form and content of
capitalist society, making it seem like he rejected all that was characteristic of it when favouring
a communist society. Different successive stages of history have influenced bourgeois society
– so, juristic form of the bourgeois society is bound to have features beyond bourgeois society
that require to be preserved. Marx did not intent to reject modern theory of rights completely.
He rejected both: man as an isolated and atomic individual and man as an indissoluble part of
social organism. Bourgeois individualism was advancement over tribal society with such
collectivism. He saw communist society as a space to develop and preserve man’s individuality
as a social being.

Individuality requires institutional recognition through rights and material basis in the form of
personal property. Without these 2, individual remains abstract and illusory, without social and
material objectification. He relied on Hegel’s understanding – that subject and object
constituted a unity.

Final assertion: It is possible to offer an alternative non-aggressive, non-exclusive, non-

absolutist, non-possessive version of a right, which isn’t distorted by bourgeois class.

Explanation: In a communist society, human being becomes bearer of rights, not abstract
juristic person. Social and creative beings can develop intellectual, moral, emotional, aesthetic
powers. This development becomes the object of rights, not the accumulation of property.
These capacities can only be developed in cooperation with others in ways that are non-
competitive and non-conflictual. Conflicts are resolved by persuasion, appeals to shared
purposes and recognition of common interests. Law here is directive and advisory, not punitive,
as the society is based on trust, goodwill, mutual help. Rights are no longer sole basis of
morality.