Human and Legal Rights

There is some difference between moral or human rights and legal rights. Legal rights require for their justification an existing system of law. Legal rights are, roughly, what the law says they are, at least insofar as the law is enforced. Legal rights gain their force first of all through legislation or decree by a legally authorized authority. Those who support adoption of laws establishing legal rights often appeal to a notion of human rights. Laws against theft might appeal to notions of a moral right to own property. But human or moral rights must gain their validity through some other source other than legal rights, since people can appeal to human or moral rights to criticize the law or advocate changes in the law (or legal rights), and people could not do this if moral rights were based upon the law.

Contractual Rights:

Contractual rights originated from the practice of promise-keeping. They apply to particular individuals to whom contractual promises have been made. Contractual rights ascend from specific acts of contract making. They normally come into being when the contract is made, and they reflect the contractual duty that another party has acquired at the same time. As a result of a contract, party A has a contractual duty, say, to deliver some good or service to party B, who has a contractual right to the good or service. Contractual rights may be upheld by the law, and in that sense can rest upon legal rights, but it is possible to conceive of contracts made outside of a legal framework and to rest purely upon moral principles. However, such contracts are less secure than contracts made within a legal framework, for obvious reasons. There are numerous examples of contractual rights such as:

-Rights to purchase a particular product or service

-Rights to be sell a product or service

-Rights to be the only seller or buyer

-Rights to delivery and timely payment

-Rights to refunds or repairs

-Various rights according to the specific intentions of each party

Concept of Human Rights:

Human rights are those moral rights that are morally important and basic, and that are held by every human being because they are possessed in virtue of the universal moral status of human beings. Human rights are one of the significant aspects of human political reality. It is the moral rights of highest order. Human Rights are evolved out of self-respect. It is intrinsic to all humans without any discrimination of race, sex, nationality, ethnicity, language, religion and colour etc. It received new shape when human beings began to think themselves. Each and every human beings are entitled to these rights without any discrimination. Human rights comprise of civil and political rights, such as the right to life, liberty and freedom of expression; and social, cultural and economic rights including the right to participate in culture, the right to food, and the right to work and receive an education.

Human rights are protected and supported by international and national laws and treaties. The UDHR was the first international document that spelled out the “basic civil, political, economic, social and cultural rights that all human beings should enjoy.” The declaration was ratified without opposition by the UN General Assembly on December 10, 1948. Under human rights treaties, governments have the prime responsibility for proto shield and promote human rights. However, governments are not solely responsible for ensuring human rights. The UDHR states:

“Every individual and every organ of society shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance.”

In theoretical review, many theorists expressed their views about human rights. S. Kim construed that human rights are "claims and demands essential to the protection of human life and the enhancement of human dignity, and should therefore enjoy full social and political sanctions". According to Subhash C Kashyap, human rights are those “fundamental rights to which every man inhabiting any part of the world should be deemed entitled by virtue of having been born a human being”. Milne opined that “human rights are simply what every human beings owes to every other human being and as such represent universal moral obligation”. According to Nickel, human rights are norms which are definite, high priority universal and existing and valid independently of recognition or implementation in the customs or legal system of particular country.

The Protection of Human Rights Act 1993 describes” Human Rights mean rights relating to life liberty, equality and dignity of the individuals guaranteed by the constitution or embodied in the International Covenants and enforceable by courts in India.”

The United Nation Centre of Human Rights defines Human Rights as “those rights which are inherent in our nature and without which we cannot live as human beings”

The Universal Declaration of Human Rights which adopted on 1948, states human rights as “rights derived from the inherent dignity of human person”

Historical origin of human rights: Records indicated that Though modern historians traced “Magna Carta” of 1521 as the historical beginning of human rights, but its real origin goes back to 539 B.C. when Cyrus, the great (king of ancient Persia) conquered the city of Babylon, he freed all slaves to return home and declared people to choose their own religion and even maintained racial equality. The idea of human rights quickly spread from Babylon to many nations especially India, Greece and eventually Rome where the concept of natural law arose in observation of the fact that people tended to follow certain unwritten laws in due course of life. There the concept of “natural law” arose, in observation of the fact that people tended to follow certain unwritten laws in the course of life, and Roman law was based on rational ideas derived from the nature of things.

Documents asserting individual rights, such as the Magna Carta (1215), the Petition of Right (1628), the US Constitution (1787), the French Declaration of the Rights of Man and of the Citizen (1789), and the US Bill of Rights (1791) are the written precursors to many of today’s human rights documents.

The Magna Carta, or “Great Charter,” was debatably the most important early influence on the extensive historical process that led to the rule of constitutional law today in the English-speaking world. In 1215, after King John of England violated a number of ancient laws and customs by which England had been governed, his subjects forced him to sign the Magna Carta, which enumerates what later came to be thought of as human rights. Among them was the right of the church to be free from governmental interference, the rights of all free citizens to own and inherit property and to be protected from excessive taxes. It established the right of widows who owned property to choose not to remarry, and established principles of due process and equality before the law. It also contained provisions forbidding bribery and official misconduct. The Magna Carta was a crucial defining moment in the fight to establish freedom.

Another breakthrough in the development of human rights was the Petition of Right, produced in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties. Rejection by Parliament to finance the king’s unpopular foreign policy had caused his government to exact forced loans and to quarter troops in subjects’ houses as an economy measure. Arbitrary arrest and imprisonment for opposing these policies had produced in Parliament a violent hostility to Charles and to George Villiers, the Duke of Buckingham. The Petition of Right, introduced by Sir Edward Coke, was based upon earlier statutes and charters and asserted four principles:

1.      No taxes may be levied without consent of Parliament.

2.      No subject may be imprisoned without cause shown (reaffirmation of the right of habeas corpus).

3.      No soldiers may be quartered upon the citizenry.

4.      Martial law may not be used in time of peace.

In 1789, the people of France brought about the abolishment of the absolute kingdom and set the stage for the establishment of the first French Republic. Sometime later, the storming of the Bastille, and barely three weeks after the abolition of feudalism, the Declaration of the Rights of Man and of the Citizen (French: La Déclaration des Droits de l’Homme et du Citoyen) was espoused by the National Constituent Assembly as the first step toward writing a constitution for the Republic of France.

The Declaration decrees that all inhabitants are to be guaranteed the rights of “liberty, property, security, and resistance to oppression.” It discusses that the need for law derives from the fact that “the exercise of the natural rights of each man has only those borders which assure other members of the society the enjoyment of these same rights.” Therefore, the Declaration sees law as an “expression of the general will”, intended to promote this equality of rights and to forbid “only actions harmful to the society.”

In 1864, sixteen European countries and several American states attended a conference in Geneva, at the invitation of the Swiss Federal Council, on the initiative of the Geneva Committee. The diplomatic conference was held to adopt a convention for the treatment of wounded soldiers in combat. The main ideologies laid down in the Convention and maintained by the later Geneva Conventions provided for the obligation to extend care without discrimination to wounded and sick military personnel and respect for and marking of medical personnel transports and equipment with the distinctive sign of the red cross on a white background.

By 1948, the United Nation’s new Human Rights Commission had attracted global attention. Under the dynamic headship of Eleanor Roosevelt, President Franklin Roosevelt’s widow, a human rights winner in her own right and the United States delegate to the UN, the Commission set out to draft the document that became the Universal Declaration of Human Rights. Roosevelt, credited with its motivation, referred to the Declaration as the international Magna Carta for all mankind. It was accepted by the United Nations on December 10, 1948. In its prelude and in Article 1, the Declaration unequivocally proclaims the inherent rights of all human beings: “Disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people. All human beings are born free and equal in dignity and rights.”

The Member States of the United Nations promised to work together to encourage the thirty Articles of human rights that, for the first time in history, had been assembled and codified into a single document. As a result, many of these rights, in various forms, are part of the constitutional laws of democratic nations in present situation.

In nut shell, The written inventor to the modern human rights documents are the English Bill of Rights (1689), the American Declaration of Independence (1776), the French Declaration of the Rights of Man and Citizen (1789), the first Ten Amendments of the Constitution of the United States (Bill of Rights 1791) and the Universal Declaration of Human Rights of UN (1948).

Human rights is the basic rights and freedom of all human, it include the right to life, liberty, freedom of thought, expression and equality before the law. It is unified, interdependent and indivisible.

Rights agree to duties in three ways:

1.      Individual duties of forbearance (non-interference)

2.      Institutional duties of assistance

3.      Individual duties of assistance

If we consider the right to property, conceived primarily as the right not to have one's personal property taken without one's consent. This implies that

a.       Other individuals have a duty to forbear from taking a person's possessions without his or her consent.

b.      Institutions, such as governments, should establish and enforce laws against theft and should do so in all neighbourhoods where theft is a possibility.

c.       Officials in the government have an individual duty, as officials, to support such laws and or enforce them.

The individual duties of assistance are performed in several ways: If the government were lax in this area, citizens might have a positive duty to pressure government to pass an appropriate law if one were missing or to enforce already existing laws.

Beyond that, individual citizens who are aware of persons with sticky fingers, as it were, have an obligation, where it could be done at reasonable cost to themselves, to thwart acts of theft.

Many theories have been developed to explain human rights. According to Dr. Justice Durga Das Basu, “Human rights are those minimal rights, which every individual must have against the State, or other public authority, by virtue of his being a ‘member of human family’ irrespective of any consideration. The philosopher John Finnis argues that human rights are reasonable on the grounds of their instrumental value in creating the necessary conditions for human well-being.

The Universal Declaration of Human Rights (UDHR), 1948, stated that human rights as “rights derived from the inherent dignity of the human person.” Human rights when they are guaranteed by a written constitution are known as “Fundamental Rights” because a written constitution is the fundamental law of the state.