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Theories of Sources of Rights - Updated

The document outlines several theories on the sources of human rights: 1. Religious/theological theories view rights as emanating from a Supreme Being based on concepts of human dignity and the intrinsic worth of all humanity. 2. Natural law theories see rights as inherent in human nature and governed by principles of social harmony, justice, and equity. 3. Historical theories assert rights have evolved gradually over time through customs and traditions rather than being deliberately created. 4. Positivist theories claim rights only exist when recognized and protected by state legislation and authority.

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2K views6 pages

Theories of Sources of Rights - Updated

The document outlines several theories on the sources of human rights: 1. Religious/theological theories view rights as emanating from a Supreme Being based on concepts of human dignity and the intrinsic worth of all humanity. 2. Natural law theories see rights as inherent in human nature and governed by principles of social harmony, justice, and equity. 3. Historical theories assert rights have evolved gradually over time through customs and traditions rather than being deliberately created. 4. Positivist theories claim rights only exist when recognized and protected by state legislation and authority.

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Theories of Sources of Rights

A. Religious Or Theological Approach

 doctrine of a Supreme Being, the Creator, the Father of all humanity


 Central to the doctrines of all religions is the concept of the dignity of
man as a consequence of human rights.

o seeks to understand the origin of human rights from a religious


perspective
o anchored on the fact that that there is a Supreme Being, who
created all of humanity
o all of humanity have rights, being created by the Supreme
Being, their rights therefore can only emanate from that
Supreme Being
o with the presence of human rights, human dignity comes into
play
o Human dignity - the right of a person to be valued and
respected
o This concept of human dignity recognizes the intrinsic worth of
human beings
 This can be traced back from the very first creation,
Adam. Scriptures state that Adam was created in the
image of God.
 If God gifted Adam with his very image, which was
never mentioned as far as His other creations are
concerned, then that could mean that the divine source
gave human beings a high value of worth
 If God is the source of human right, then those rights are
universal in nature, inalienable, and cannot be denied or
disregarded by mortal beings
o In fine, human beings are entitled to be treated as worthy of
respect and concern because that is their inherent right which
emanated from the Divine Source
o Not confined in Christianity alone, it is a fundamental concept
across all religions

 Criticism: Some religions impose so many restrictions on individual


freedom. Some religions even tolerate slavery, discrimination against
women and imposition of death penalty

B. Natural Law –

 The conduct of men must always conform to the law of nature


o Natural law theory (of ethics and philosophy) states that human
beings possess intrinsic values that govern our behavior and
reasoning
o That our nature is inclined to living peacefully and in harmony
with others
o Natural law as a source of obligation; anchored on equity and
moral justice
o Independent of enacted human laws, statutes, traditions, or even
religion
 Whatever is disturbing to social harmony is wrong and unjust.
(Hugo Grotius, 1925)
 Natural law has served as the basis of state-enacted positive law
o When the Nazi army generals were prosecuted for the offenses
they committed such as mass killings and genocide against
women, children and other civilians, there claimed that they cannot
be punished because there is no pre-existing law that condemns
those crimes. The judges of the tribunal resorted to natural law
o Crimes committed were against humanity and that there is no need
for a law penalizing those acts
o The killing of those women, children and civilians was disturbing
to social harmony, it is wrong and unjust, and therefore, based on
natural law, the perpetrators of those crimes must be penalized
o After this, a law was promulgated which legalizes the punishment
accorded those who committed these atrocities

C. Historical Theory

 Human rights are not deliberate creation of men


 They have already existed through the common consciousness of the
people of what is right and just
o This existence is not abrupt, it is a gradual and evolutionary
process
 Examples are customs and traditions
o Through the passage of time, a custom or tradition due to
practical utility becomes a right

D. The Positivist Theory

 legal positivism
 states that all rights and authority come from the state and what officials
have promulgated
 The only law is what is commanded by the sovereign
o Natural law and natural rights can be valid only if they can be
enforced by the state
o that rights are enjoyed if recognized and protected by legislation
promulgated by the state
 Main criticism: the authority that promulgates the law may not promote
human rights
o Story of Daniel’s friends
o If they do not worship the golden image, they will be thrown in the
fiery furnace
o This law does not promote human rights since it curtails their right of
religion and ultimately their right to life
 Positivism can undermine international law because its emphasis of the
supremacy of the national sovereignty

E. The Marxist Theory

 Influenced by the Karl Marx


 It's a political and economic theory where a society has no social classes
o no capitalist, no proletariat (working class)
o Every person within the society works for a common good
 Interest of society > Individual interest
 individual freedom can only be recognized after the interest of society is
served
 even in a capitalist society, the proletariat should not abandon its efforts to
strive for human rights, and that the proletariat should use human
rights well to improve their survival and development conditions
 Regards the natural law as idealistic because the rights of man are not a gift
of nature, not a legacy from past history, but the reward of the struggle
against the accident of birth and against the privileges
 rights can only be possessed by those who has earned and deserved them

F. Functional or sociological approach

 Human rights exist as a means of social control, that human rights exist to
serve the social interests of society
 Essence: satisfy the needs of people
o This approach was developed in the early 20th century when there
were demands for a variety of wants, as help for the unemployed,
handicapped, underprivileged, minorities and other disadvantaged
groups

G. Utilitarian Theory
 principle that requires governments to maximize the total net sum of citizens
 the public welfare of a community is dependent on the “sum welfare of
individuals, which is measured in units of pleasure and/or pain”
 the goal is to promote the greatest happiness of the greatest number
o resources are scarce in any society, and especially limited in some, all
the benefits listed as human rights, even life itself, are subject to the
promotion of the greatest good within a society.
o Imprisonment may be justified because there is thought to be a greater
good for society that an individual be completely denied their freedom
of movement and locked away.
 Another type of theory emphasizes that an individual cannot be more
important than the entire group
 An act is good only when it takes into consideration the interests of the
society and tends to augment the happiness of the entire community

H. Theory based on Justice

 Each person has equal rights to the whole system of liberties


 To maintain the self-respect and the dignity of the individual, social
primary goods, such as liberation, opportunity and income are to be
distributed fairly
 The general conception of justice is one of fairness and those social
primary goods such as opportunity, income and wealth and self-respect
are to be distributed equally

I. Theory based on Equality and Respect


 the recognition of individual rights in the enjoyment of the basic freedom
such as freedoms of speech, religion, fair trial and access to courts
 government must treat all their citizens equally, and must intervene in
order to advance the general welfare
J. Theory based on the Dignity of man

 this theory proceeds on the premise that human rights means sharing
values of all identified policies upon which human rights depend on.
 The ultimate goal of this theory is a world community where there is
democratic sharing and distribution of values.
 All available resources are utilized to the maximum and the protection of
human dignity is recognized.

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