13.5 — Rights, and Where They Came From

Jeremy Bentham, in 1796, wrote that natural rights are simple nonsense, and natural and imprescriptible rights are rhetorical nonsense — nonsense upon stilts.

His objection was not that people should be treated badly. It was that a right, to be meaningful, must be enforceable, and that a right which exists by nature and which no institution enforces is a wish being described as a fact.

He was largely correct about the logic and largely wrong about the consequences, and this chapter is about why both can be true.

Where the idea came from

Chapter 4.8 found the origin: the Axial Age move to a standard that applies to everyone including the ruler.

Chapter 8.9 gave the modern formulation: Locke's natural rights to life, liberty and property, existing prior to government, which government exists to protect.

Chapter 10.2 and 10.3 gave the declarations — American and French — which stated them universally and applied them narrowly.

And Chapter 10.5 supplied the test. The Haitian revolutionaries took the universal claim literally, and the reaction of every state that had made it demonstrated how narrowly it was meant.

Which is the pattern. Rights are declared in universal terms by people who intend something narrower, and the universal terms are then used by everyone excluded. Abolitionists, suffragists, anti-colonial movements, civil rights movements and every subsequent claim has used the same move: you said everyone; we are people.

Negative and positive

The distinction matters for what a right actually requires.

A negative right requires others to refrain. Freedom from torture, from arbitrary arrest, from censorship. Its cost is low in resources and it requires the state to stop doing something.

A positive right requires provision. Rights to education, health care, food, housing. These require money, institutions and personnel.

The classical liberal objection is that positive rights are not rights but policy objectives, since a right that cannot be delivered without resources is contingent on those resources.

The reply is that negative rights are not free either. Freedom from arbitrary arrest requires courts, trained police, prisons and a legal aid system. Property rights require a land registry, a court and an enforcement mechanism. Every right costs money; the difference is a matter of degree.

The Cold War institutionalised the split. Two separate covenants were adopted in 1966: the International Covenant on Civil and Political Rights, championed by the West, and the International Covenant on Economic, Social and Cultural Rights, championed by the Soviet bloc. Each side ratified the one it liked and criticised the other for the one it did not.

And India's Constitution splits them explicitly (Chapter 13.3): Fundamental Rights are enforceable; Directive Principles, which contain the economic and social objectives, are not. The Supreme Court has since converted several of the latter into the former by reading them into Article 21, which is a partial dissolution of the distinction by judicial method.

The international system

The Universal Declaration of Human Rights, 1948.

Its drafting was more diverse than is usually assumed (Chapter 11.12): Eleanor Roosevelt chaired, the Lebanese philosopher Charles Malik and the Chinese diplomat P. C. Chang were central to the drafting, and the Indian delegate Hansa Mehta is credited with changing "all men are born free and equal" to "all human beings".

It is a declaration, not a treaty. It is not binding in itself, and it has become the reference document for everything since.

The treaties that followed — the two 1966 covenants, and conventions on genocide, refugees, racial discrimination, discrimination against women, torture, the rights of the child, and the rights of persons with disabilities — are binding on states that ratify them.

And the enforcement is the weak point. Treaty bodies review periodic reports and issue observations. Regional courts have real power: the European Court of Human Rights issues binding judgements against states and they are generally complied with, which makes it the strongest such system anywhere. Elsewhere the mechanisms are weaker.

The International Criminal Court, from 2002, prosecutes individuals for genocide, crimes against humanity, war crimes and aggression. Its jurisdiction depends on ratification, and the United States, China, Russia and India have not ratified. It has secured convictions and has been criticised for concentrating on African cases, which reflects where jurisdiction and referrals have been available rather than a selection bias in intent.

The relativism argument

The claim: human rights as formulated are a Western construct, reflecting individualist assumptions, and imposing them on societies with different traditions is a continuation of the civilising mission (Chapter 8.9).

It deserves a serious answer rather than dismissal.

What is right about it. The drafting was dominated by particular states, and the enforcement is selective — rights are invoked against adversaries and overlooked in allies, consistently, by every major power. The record of Western states themselves — colonialism, torture after 2001 (Chapter 12.9), and current practice on migration — makes the moral position awkward. And the emphasis on individual rather than collective or community rights is a genuine philosophical choice, not a neutral one.

What is wrong with it. The drafters included Chinese, Lebanese, Indian, Chilean and Filipino participants. Every major tradition contains resources for the core claims — Chapter 4.8's Axial Age findings, Ashoka's edicts on religious tolerance (Chapter 6.4), the Islamic legal tradition's protections, and Confucian obligations of rulers toward the ruled.

And the decisive objection is empirical. The relativist argument is almost always made by governments and almost never by the people whose rights are at issue. When Chinese, Iranian, Russian or Indian citizens are asked whether they would like not to be tortured, not to be imprisoned without trial, and to be able to say what they think, the answers do not vary much by culture. The claim that a population does not want rights is usually made on that population's behalf by the people who would have to stop violating them.

The reasonable position: the core protections against torture, arbitrary detention, killing and starvation are as close to universal as moral claims get. The elaborate periphery — specific institutional forms, particular family arrangements, the balance between individual and community — is genuinely contestable and genuinely varies.

What makes a right real

Bentham's question, answered.

Four things are required, and a right that lacks any of them is aspirational.

A statement in law, ideally constitutional and hard to amend.

A remedy — a procedure by which a person can claim it. Chapter 13.3 quoted Ambedkar on Article 32 being the heart of the Constitution for exactly this reason.

An institution willing and able to enforce it against the state.

And capacity. A right to education requires schools and teachers; a right to a fair trial requires courts that can hear cases within a lifetime (Chapter 13.4).

India illustrates all four. Untouchability was abolished by Article 17 in 1950 and is practised. The Right to Education Act made schooling a fundamental right and enrolment is near universal while learning is not (Chapter 6.28). The right to a speedy trial has been read into Article 21 and undertrials wait years.

The gap between declared and delivered is not hypocrisy in the drafting. It is the difference between a statement and a machine, and closing it is what most domestic politics consists of.

The expansion

Rights have expanded continuously and the mechanism is consistent.

A group excluded from a universal claim uses the universal claim. Property-qualified suffrage to universal male suffrage to universal adult suffrage. Abolition of slavery, then formal equality, then substantive equality. Women's rights, disability rights, and the rights of sexual minorities.

India's own sequence. Untouchability abolished in 1950 and reservations from the start. The Mandal extension in 1990 (Chapter 6.27). Section 377 read down in 2018. Privacy in 2017. And the ongoing arguments about personal law and about caste enumeration.

And expansion is not automatic and is reversible. Rights that were won have been narrowed in a number of countries in the last two decades, which Chapter 13.2's erosion pattern describes.

Where this shows up in your life

Everything you can do without asking permission — travel, say what you think, hold property, practise a religion or none, marry whom you choose, refuse to answer questions from police — is a right that somebody had to establish and that is maintained by institutions somebody has to fund.

And the practical test of whether a right is real in your country is not whether it is in the constitution. It is whether a poor person, with no connections, can obtain it from a court within a time that matters. That is the measurement, and it is the one this volume recommends applying to any state including your own.

What the next page covers

Chapter 13.6 covers elections — the mechanics, why the voting system used changes the result more than the voters do, what proportional and first-past-the-post systems each produce, how gerrymandering works, what makes an election free and fair, and the Indian electoral system in detail including reservations and the machinery of running the largest election in the world.