Human rights as inherent and God-given

Natural Rights Theory is one of the philosophical foundations for the concept of human rights. It posits that individuals possess certain inherent rights that are not granted by governments, laws, or social customs, but are fundamental to human nature itself. This theory suggests that these rights are prior to the existence of any state or political authority.

Human rights as inherent and God-given

A core tenet of traditional natural rights theory is the idea that these rights are **inherent** in all human beings. This inherent quality means they belong to individuals by virtue of their humanity, not as a gift from any authority. Furthermore, some versions of natural rights theory attribute the origin of these inherent rights to a higher power, describing them as **God-given**.

The idea that rights are God-given reinforces their inalienability and universality. If rights come from a divine source, they are seen as immutable and beyond the power of any earthly authority to revoke. This perspective often draws from religious or theological frameworks that posit a universal moral order and the inherent dignity of every individual as created by God.

Thinkers within this tradition argued that positive law (laws made by human beings) should be in accordance with natural law and respect these God-given rights. Laws that violate natural rights were sometimes considered unjust or illegitimate.

Philosophical Lineage:

The concept of natural rights has roots in various philosophical traditions:

• **Ancient Philosophy:** Ideas of natural law can be traced back to ancient Greek and Roman thinkers like Aristotle and Cicero, who discussed a higher law based on reason or nature.
• **Medieval Philosophy:** The concept was further developed by medieval philosophers like Thomas Aquinas, who integrated natural law with Christian theology, arguing that eternal law (God's plan) is manifested in natural law, which is discernible by human reason. This perspective strongly linked natural rights to divine law.
• **Early Modern Philosophy:** The idea evolved during the Renaissance and Reformation, laying the groundwork for later Enlightenment thinkers.

The notion of rights being inherent and potentially divinely ordained provided a powerful moral and philosophical basis for asserting individual liberties against the absolute power of monarchs and states in earlier historical periods.

Influence of Enlightenment Thinkers

The Enlightenment period (17th and 18th centuries) witnessed a significant transformation in the articulation and influence of natural rights theory. Thinkers of this era built upon earlier concepts but secularised and refined them, framing natural rights within a rationalist and individualistic perspective. Their ideas had a profound impact on revolutionary movements and the development of modern political thought and human rights declarations.

Locke, Rousseau

Among the most influential Enlightenment thinkers on natural rights were John Locke and Jean-Jacques Rousseau:

John Locke (1632-1704):

• **Concept of the State of Nature:** Locke famously described a "state of nature" where individuals exist prior to the formation of government, governed by natural law. In this state, individuals possess natural rights, which he primarily identified as **Life, Liberty, and Property**.
• **Purpose of Government:** Locke argued that individuals enter into a social contract to form a government primarily to **protect these natural rights**. The government's legitimacy rests on its ability to safeguard these rights.
• **Right to Revolution:** If the government fails to protect natural rights or becomes tyrannical, the people retain the right to resist and overthrow that government.
• **Influence:** Locke's ideas were highly influential on the American revolutionaries and significantly shaped the philosophy behind the American Declaration of Independence. His emphasis on limited government and the protection of individual liberties became central tenets of liberalism and constitutionalism. While Locke also spoke of natural law as reflecting divine will, his focus was more on rights discernible by human reason.

Jean-Jacques Rousseau (1712-1778):**

• **Concept of the Social Contract:** Rousseau also discussed the social contract, but his focus was different from Locke's. He argued that individuals surrender some of their individual rights to the "general will" of the community to achieve a greater collective good and freedom through citizenship.
• **Concept of Natural Freedom:** Rousseau believed that in the state of nature, humans are inherently free and equal. He argued that society and government, as they existed in his time, corrupted this natural freedom.
• **Emphasis on the General Will:** For Rousseau, legitimate political authority arises from the general will of the people, and individuals gain true freedom by obeying the laws they prescribe for themselves as a collective. While he spoke of the inherent rights of man, his emphasis on collective sovereignty and the general will led to different conclusions about the relationship between individual rights and the state compared to Locke.
• **Influence:** Rousseau's ideas influenced the French revolutionaries and the Declaration of the Rights of Man and of the Citizen, particularly the concept of national sovereignty and the emphasis on the rights of the "citizen" within the body politic.

Other Influential Thinkers:

• **Thomas Hobbes (1588-1679):** Though known for his view of a strong sovereign (*Leviathan*), Hobbes also used the concept of a "state of nature" and the social contract to justify government, albeit with a focus on security over liberty.
• **Immanuel Kant (1724-1804):** Kant's philosophy strongly emphasised individual autonomy, dignity, and moral duties derived from reason, reinforcing the inherent worth of each person, which is a core principle underlying human rights.

The Enlightenment thinkers secularised the concept of natural rights, grounding them in reason and human nature rather than solely in divine authority. They also developed the social contract theory to explain the origin and legitimate purpose of government as being the protection of these rights. Their ideas directly fueled the American and French Revolutions and provided the intellectual foundation for the assertion of fundamental rights in national constitutions and, eventually, international human rights instruments.

Human rights as created by State and international law

The Positivist Theory of Human Rights presents a fundamentally different perspective compared to theories like Natural Law. While Natural Law posits that human rights are inherent and derive from a higher moral or natural order, positivism asserts that rights, including human rights, are not pre-existing moral entitlements. Instead, they are seen as legal constructs that come into existence only when they are formally recognised, defined, and enacted by a legitimate sovereign authority, primarily the State.

From a positivist viewpoint, a right exists because it has been 'posited' or laid down by the law. This means human rights are the product of human legislative activity, both at the national and international levels. They are created through:

National Legislation

Within a sovereign state, human rights gain their status and validity through the constitution, statutes passed by the parliament or legislature, and judicial decisions. For example, the fundamental rights enshrined in the Indian Constitution (Articles 12 to 35) are human rights that have been legally codified and guaranteed by the Indian State. Their existence and enforceability stem from their inclusion in the supreme law of the land.

International Law

On the international stage, human rights are primarily created and recognised through treaties, conventions, customary international law, and the general principles of law accepted by nations. Documents like the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are seen by positivists as the instruments that create and define these rights in the international sphere. States, by ratifying these treaties, agree to be bound by their provisions, thereby giving legal force to the human rights outlined within them.

Therefore, for a positivist, the question "Do people have a right to X?" translates to "Has the State (or international law) enacted a law granting the right to X?". If no such law exists, then from a purely positivist perspective, the right does not legally exist, regardless of its moral desirability.

Distinction from Natural Law

This perspective is a direct contrast to Natural Law, which would argue that the right to life or freedom of speech exists inherently, irrespective of whether any government has legislated it. Positivism argues that without legal enactment, these are merely moral claims or aspirations, not legally binding rights. The strength of a human right, according to positivism, lies in the authority and legitimacy of the body that created it and the legal framework that supports it.

Emphasis on legal recognition and enforceability

A central tenet of the positivist theory of human rights is its strong emphasis on legal recognition and enforceability. For a positivist, a human right is not merely a philosophical concept or a moral ideal; it is a legal right that carries specific legal consequences. Its existence and validity are inextricably linked to its status within a legal system.

Legal Recognition is Key

Positivists argue that for a human right to be meaningful and effective, it must be formally incorporated into the legal framework of a state or recognised under international law. This incorporation provides the right with structure, definition, and limits. Without legal recognition, a purported 'right' remains merely a claim or a moral plea, lacking the authority of law. The process of legal recognition typically involves:

• Enactment in constitutions or statutes.
• Ratification of international treaties.
• Development through judicial precedents.

For instance, the right to education in India gained significant legal force and clarity only after its inclusion as a Fundamental Right under Article 21A of the Constitution and the subsequent enactment of the Right to Education Act, 2009. Prior to this legal recognition, education was more of a directive principle or a social goal.

Enforceability is Essential

The other crucial aspect is enforceability. A positivist would argue that a right that cannot be enforced through legal mechanisms is, in practical terms, not a right at all. Enforceability means that individuals whose rights are violated can seek redress and remedy through established legal processes, such as:

• Approaching courts (e.g., filing a writ petition in the Supreme Court or High Court in India for violation of Fundamental Rights).
• Appealing to national human rights institutions (like the National Human Rights Commission of India).
• Utilising international complaint mechanisms (if applicable and recognised by the state).

The focus on enforceability highlights the positivist belief that rights function within a system of rules and sanctions. The law not only defines the right but also provides the machinery to ensure compliance and punish violations. Without this machinery, the right lacks efficacy and substance from a legal standpoint.

Why Enforceability Matters to Positivists

This emphasis stems from the positivist view that law is fundamentally about commands backed by sanctions (a view famously associated with John Austin, an early legal positivist). Rights are seen as benefits or protections granted by the sovereign command, and their power derives from the state's willingness and ability to enforce them. A "paper right" that exists in a document but cannot be claimed or defended in practice holds little value in the positivist framework.

In conclusion, the positivist theory anchors human rights firmly within the domain of law. It sees them as deliberate creations of legal systems, deriving their legitimacy from the authority of the law-maker and their power from the enforceability mechanisms provided by the state and international legal order. This perspective underscores the critical role of legislation, treaties, and judicial systems in the actualisation and protection of human rights.

Human rights based on human dignity

One of the most profound and influential ethical foundations for human rights is the concept of human dignity. This theory posits that human rights are not granted by states, divine will, or derived from a hypothetical contract, but rather flow inherently from the intrinsic worth and dignity possessed by every human being simply by virtue of being human. It is a moral claim about the value of individuals that serves as the bedrock for their rights.

The Concept of Human Dignity

Human dignity, in this context, refers to the idea that every person has an inherent, inalienable, and immeasurable value. This value is not dependent on their social status, nationality, religion, abilities, achievements, or any other contingent factor. It is a quality they possess simply by being members of the human species. Philosophers like Immanuel Kant heavily influenced this perspective, arguing that rational beings possess dignity because they are ends in themselves, capable of moral agency, and should never be treated merely as means to an end.

Dignity as the Source of Rights

The theory argues that because all humans possess this equal and inherent dignity, they are entitled to certain fundamental protections and entitlements – i.e., human rights – that safeguard this dignity. Rights are seen as necessary conditions for a life lived in a manner befitting a being of dignity. Violating someone's human rights is thus seen as an affront to their dignity.

Consider the following examples:

• The right not to be tortured or subjected to cruel, inhuman, or degrading treatment is a direct consequence of acknowledging human dignity. Such acts strip individuals of their self-worth and treat them as mere objects.
• The right to equality and non-discrimination stems from the recognition that dignity is possessed equally by all, regardless of differences.
• The right to freedom of thought, conscience, and religion respects the individual's inner moral and intellectual life, essential aspects of a dignified existence.
• The right to a minimum standard of living can be linked to dignity, as extreme poverty and deprivation can prevent individuals from living a life commensurate with human worth.

Implications of the Dignity-Based Approach

Viewing human rights through the lens of dignity has several important implications:

• Universality: Since dignity is seen as inherent to all humans, human rights are necessarily universal, applying to everyone everywhere.
• Inalienability: Dignity cannot be given away, sold, or taken away; therefore, human rights based on dignity are also inalienable.
• Foundation for Law: While laws and institutions are necessary to protect human rights, the rights themselves are seen as having a moral basis that precedes and justifies the legal framework. Laws should reflect and uphold human dignity.
• Moral Imperative: Upholding human rights becomes a moral duty, not just a legal obligation, because it is about respecting the inherent worth of others.

The Preamble of the Universal Declaration of Human Rights (UDHR) explicitly links rights to dignity, stating that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." This highlights the central role of dignity in the modern human rights movement.

Social Contract Theory

Social Contract Theory, while primarily a theory about the legitimacy of government and political authority, has also been used to provide a foundation or justification for human rights. In essence, it explains rights by reference to a hypothetical agreement (or contract) between individuals to establish a society and a government, or between individuals and their ruler.

Core Idea of the Social Contract

The theory typically starts by describing a "state of nature" where there is no organised government. Individuals in this state possess certain freedoms or rights. However, the state of nature is often depicted as problematic (e.g., insecure, chaotic, lacking impartial justice). To overcome these problems, individuals agree to leave the state of nature and form a civil society by creating a government. This agreement is the 'social contract'. In exchange for the benefits of social order and protection, individuals agree to surrender some of their freedoms or powers to the sovereign authority.

Variations and Relevance to Human Rights

Different social contract theorists have different views on the state of nature, the rights individuals possess within it, what is surrendered, and what is gained. This leads to different implications for human rights:

Thomas Hobbes (Leviathan)

Hobbes described the state of nature as a "war of all against all," where life is "solitary, poor, nasty, brutish, and short." Individuals have a right to everything, but this right is meaningless without security. To escape this, individuals enter a contract to surrender almost all their rights to an absolute sovereign in exchange for peace and order. In this view, rights, as we understand human rights today (like political freedoms), are largely *created* by the sovereign and exist only insofar as the sovereign permits. The primary "right" retained is the right to self-preservation.

John Locke (Two Treatises of Government)

Locke presented a more optimistic view of the state of nature, where individuals possess natural rights based on natural law, including the rights to life, liberty, and property. The state of nature is inconvenient because there is no common judge to resolve disputes. The purpose of the social contract, for Locke, is *not* to surrender these natural rights, but to better protect and secure them through the establishment of a government with known laws and impartial enforcement mechanisms. The people retain their natural rights, and the government's legitimacy depends on its ability to protect these rights. If the government fails to do so, the people have the right to resist and establish a new government. This Lockean perspective is highly influential on modern liberal human rights theory, suggesting that rights are inherent and the role of government is to protect them.

Jean-Jacques Rousseau (The Social Contract)

Rousseau focused on the idea of the "general will" and popular sovereignty. In his view, individuals surrender their natural liberty to the community as a whole, gaining civil liberty and rights as members of the sovereign collective. Rights are not pre-existing against the community, but rather are granted by the collective will. While emphasizing equality and popular rule, this view can potentially subordinate individual rights to the will of the majority or the state, which is a point of tension with the concept of inalienable human rights.

Strengths and Criticisms

Strengths: The social contract theory provides a framework for understanding the relationship between individuals and the state, justifying the existence of government as a protector of rights (especially in Locke's version). It grounds political legitimacy in the consent of the governed, which aligns with the idea that governments are accountable for upholding human rights.

Criticisms: A major criticism is the historical and conceptual reality of the "social contract." Was such an agreement ever made? Does it bind future generations? It struggles to explain the universality of human rights, as the contract is typically depicted as being within a particular society. It doesn't explain rights that individuals might have *against* society or the collective. Furthermore, the emphasis on consent can be problematic when considering the rights of minorities or marginalised groups who may not have genuinely consented to the existing social structure.

Despite criticisms, the Lockean variant of Social Contract Theory remains relevant for its emphasis on the state's obligation to protect fundamental rights as the basis of its legitimacy.

Critique and Synthesis of Theories

While various theories attempt to explain the origin, nature, and justification of human rights, each faces significant critiques. Understanding these critiques is crucial for appreciating the complexities and ongoing debates surrounding human rights. In practice, the understanding and implementation of human rights often involve a synthesis or combination of insights from different theoretical perspectives.

Critique of Major Theories

Critique of Natural Law Theory

• Lack of Empirical Proof: Critics question the existence of a "higher law" or "natural order" from which rights are derived. How can we empirically verify the existence of these inherent rights?
• Defining "Human Nature": There is no universal consensus on what constitutes "human nature." Different interpretations can lead to conflicting lists of what constitutes a "natural" right. Is human nature inherently good, selfish, rational, or something else?
• Static vs. Dynamic: Natural law can sometimes appear static, based on timeless truths. However, the understanding and scope of human rights have evolved historically (e.g., inclusion of socio-economic rights). How can a static theory account for this evolution?
• Enforcement Gap: Even if natural rights exist, the theory itself doesn't provide a mechanism for their enforcement in the absence of a legal system.

Critique of Positivist Theory

• Moral Justification: A purely positivist view struggles to provide a moral basis for criticising unjust laws or states that violate what are commonly considered human rights. If rights only exist because the state wills them, how can we say the state *ought* to grant or respect certain rights?
• Relativism: If human rights are solely dependent on state recognition, it could lead to a situation where rights vary significantly from one country to another, potentially undermining the idea of universal human rights. A state could simply choose not to recognise certain rights.
• Foundation for International Law: It's challenging to explain the binding nature of international human rights law solely on state consent, especially for states that haven't ratified key treaties or that violate customary international law. Why do states feel pressure to conform to international human rights norms even when it's not strictly legally binding according to their domestic law?

Critique of Ethical/Moral Theories (Dignity & Social Contract)

• Defining Dignity: While compelling, "human dignity" can be a vague concept. How do we translate the abstract idea of dignity into specific, actionable rights? What constitutes an affront to dignity can also be debated across cultures.
• Hypothetical Nature of Contract: Social contract theory relies on a hypothetical scenario (state of nature and the contract) which lacks historical reality. Does a hypothetical agreement bind real people living today?
• Minority Rights: Particularly in theories like Rousseau's, there's a risk that the emphasis on the "general will" could potentially override the rights of individuals or minority groups.
• Enforcement: Like natural law, these moral theories provide the *why* but not necessarily the *how* of human rights protection. They explain *why* rights should exist but don't inherently create the institutions for their enforcement.

Synthesis of Theories

Despite their individual weaknesses, these theories offer complementary insights. In practice, a robust understanding and defence of human rights often draw upon elements from multiple perspectives:

• The Dignity-Based Approach provides the essential moral foundation – the compelling reason *why* human rights matter and are universal and inalienable. It appeals to a shared understanding of the inherent worth of every person.
• Positivism highlights the crucial need for legal recognition and enforcement. Without being codified in national constitutions and international treaties, and without legal mechanisms for redress, human rights remain aspirational rather than effective protections. It explains *how* rights function within legal and political systems.
• Social Contract Theory (especially Lockean) offers a framework for understanding the relationship between the state and individuals, suggesting that the state's legitimacy is contingent upon its protection of fundamental rights. It provides a basis for holding governments accountable.

For example, in India, the fundamental rights in the Constitution (a positivist element) are often interpreted and expanded by the judiciary based on underlying principles of dignity, liberty, and equality (drawing on ethical and natural law concepts). International human rights standards (positivist international law) are increasingly influencing domestic law and advocacy, often rooted in the universal moral claim of human dignity.

Thus, in practice, human rights are often understood as having a moral grounding (dignity), being expressed and protected through legal frameworks (positivism), and forming a crucial part of the legitimate relationship between the state and its citizens (social contract).

Human Rights as social constructs

Viewing human rights as social constructs is another significant theoretical perspective. This view doesn't necessarily deny the *value* or *importance* of human rights, but it critically examines how they come into being, how their meaning evolves, and how they function within societies. It sees human rights not as pre-existing facts of nature or inherent moral truths discovered by reason, but as concepts, norms, and practices that are developed, shared, and maintained through human social interaction, discourse, and historical processes.

Key Ideas of Social Constructivism

From this perspective:

• Created by Society: Human rights are the product of human agreement, negotiation, struggle, and political action over time. They are not discovered but are *created* through social processes.
• Meaning is Socially Determined: The meaning and scope of specific rights (e.g., what exactly constitutes "freedom of speech" or "right to health") are not fixed but are shaped by social, cultural, historical, and political contexts and debates.
• Influence of Power: The definition, recognition, and implementation of human rights can be influenced by power dynamics within and between societies. Dominant groups or powerful states may shape the discourse and practice of human rights.
• Performance and Practice: Human rights exist not just in legal texts but also in the practices, advocacy, and struggles of individuals, groups, and institutions. They are performed and reinforced through social action.

Implications for Understanding Human Rights

Viewing human rights as social constructs has several implications:

Historicity

This perspective highlights that the concept of human rights is not timeless but has a specific history. The modern idea of human rights emerged in particular historical contexts (e.g., Enlightenment, post-WWII). Understanding this history reveals how specific rights were articulated in response to particular social problems and power structures.

Cultural Relativity and Universality Debate

Social constructivism is often associated with discussions of cultural relativism. If rights are socially constructed, does this mean they are only valid within the society that constructed them? This challenges the claim of universality inherent in most human rights declarations. However, many constructivists argue that while the *expression* and *implementation* of rights might vary culturally, a core set of rights reflecting shared human needs or minimum standards of dignity could still emerge from cross-cultural dialogue and global consensus-building processes.

Agency and Struggle

This view empowers individuals and groups by showing that human rights are not just abstract concepts but are actively claimed, fought for, and defended by people. Social movements, human rights organisations, and ordinary citizens play a crucial role in demanding the recognition and realisation of rights, thereby shaping their evolution.

Consider the struggle for the recognition of LGBTQ+ rights or environmental rights. These were not initially prominent in early human rights documents but have gained recognition through persistent social activism and changing societal norms.

Relationship to Other Theories

Social constructivism can be seen as either a challenge to or an explanation of other theories:

• It challenges Natural Law and Dignity theories by questioning the idea of pre-existing, inherent rights, suggesting that even the concept of dignity and the rights derived from it are products of social and historical processes.
• It complements Positivism by explaining *how* the legal and political will that "posits" rights is formed – through social negotiation, political struggle, and the development of shared understandings.
• It can incorporate insights from Social Contract theory by viewing the "contract" itself not as a historical event, but as a continuously evolving social understanding of the reciprocal obligations between the state and society, shaped by ongoing social dialogue.

In essence, the social constructivist perspective reminds us that human rights are living, dynamic concepts, continually being defined, debated, and reshaped by human societies. It shifts the focus from finding the ultimate philosophical foundation to understanding the social processes through which human rights gain meaning and traction in the world.