THE CONCEPT OF RIGHTS: AN OVERVIEW

Subject Name: Jurisprudence

Academic Year:

2022-2023

Semester: II

Submitted by

SEJAL RAGHUWANSHI

UGB 22-52

Submitted to
Prof. Abhirup Das

Assistant Professor of Law

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

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 Table of Contents
Sr. No. Particulars Page
No.
1 Introduction 3

2 Literature Review 3

3 What Are Rights? 4

4 Evolution Of Rights 5

5 Types Of Rights 8

6 Right In Rem And Right In 10

Personam: Holland On
Jurisprudence

7 First Generation Rights 11

8 Second Generation Rights 11

9 Third Generation Rights 12

10 Conclusion 12

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INTRODUCTION
The concept of rights is a fundamental principle in society that is based on the idea of individual
freedom and autonomy. Rights are legal, social, or moral principles that define the entitlements of an
individual or a group of people. They are fundamental to the idea of justice and fairness in a society
and are considered to be universal, inalienable, and indivisible.
Rights are revered as inalienable . It is the collection of privileges that a person is endowed with at
birth. Rights guarantee a high level of living for each individual. Rights enable people to live happy,
prosperous lives. Every right is extremely important in determining how someone lives their life.
Most frequently, some rights are described as fundamental or inherent birthrights. These rights are
not a product of any state or piece of legislation, and they cannot be changed in any way. Human
rights are rights derived from a person's inherent dignity, according to the Universal Declaration of
Human Rights. Civil and political rights are included in the concept of human rights. These rights
typically place restrictions on governmental power that could jeopardize an individual's freedom.
There are also so-called "social rights," which give the government a range of tools to raise citizens'
standards of living.1

LITERATURE REVIEW
The concept of rights is a fundamental aspect of modern legal and political discourse, and has been
subject to extensive philosophical and legal analysis. According to Perry (2011), the concept of rights
refers to the entitlements that individuals possess, which are recognized and protected by law or
custom. Rights can be understood as both negative (entailing non-interference) and positive (entailing
provision of certain goods and services) in nature.2

The origins of the concept of rights can be traced back to the Enlightenment period, with thinkers
such as John Locke and Immanuel Kant emphasizing the importance of individual rights in the face
of oppressive governments.3 The Universal Declaration of Human Rights (UDHR) is often
considered a landmark document in the development of human rights, outlining a comprehensive list
of civil, political, economic, social and cultural rights.4

1 Marco Sutto, “Human Rights Evolution, a brief History” pp. 18

2 The Editors of Encyclopedia Britannica, “Declaration of the Rights of Man and of the Citizens”
3 Nidhi7878, “Human Rights and its Evolution with Time”
4 Supra Note 3
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However, the concept of rights has also been subject to criticism and debate. Some critics have
argued that the notion of rights is inherently individualistic and does not adequately account for
social and collective responsibilities.5 Others have argued that rights are culturally and historically
contingent, and can vary across different societies and contexts.6

In recent years, there has been increasing attention to the intersection of rights and other areas of law
and policy, such as environmental law7, intellectual property law8, and international trade law.
Additionally, there has been growing recognition of the need to consider the rights of marginalized
and vulnerable groups, such as refugees and migrants9, and the importance of taking a more
intersectional approach to understanding rights.10
Overall, the concept of rights continues to be a central and evolving aspect of legal and political
discourse, and is likely to remain the subject of ongoing debate and analysis in the years to come.

WHAT ARE RIGHTS?

According to Stanford University, “Rights are fundamental normative norms regarding what is
permitted or owed to people in accordance with some legal system, social custom, or ethical theory.
Rights are therefore legal, social, or ethical principles of freedom or entitlement.”11 In fields like law
and ethics, especially in notions of justice and deontology, rights are fundamentally important.
Any civilization must have rights, and attempts to define and reinterpret them frequently figure into
the history of social strife. " Rights determine the form of administrations, the content of laws, and
the shape of morality as it is currently viewed," according to the Stanford Encyclopedia of
Philosophy.12
Different authors have given their own definitions of rights.
Laski claims that "rights are those elements of social life without which no man can generally attempt
to be himself at his best."
Rights, according to T. H. Green, are "powers necessary for the fulfillment of man's purpose as a

5 Hemant More, “Theories of Rights” August 1, 2021

6 Stanford University, “Stanford Encyclopedia of Philosophy”
7 Ibid
8 Lexpeeps, “Evolution of Human Rights” August 6, 2022
9 David Little, "The Nature and Basis of Human Rights," Prospects for a Common Morality. (Princeton University Press,
1992).
10 William Ury, J. Brett, and S. Goldberg, “GETTING DISPUTE RESOLVED: DESIGNING SYSTEMS TO CUT THE
COST OF CONFLICT” (San Francisco: Jossey-Bass, 1988), pp. 7
11 Lindsey Reid, “The Generation of Human Rights” January 14, 2019.
12 Council of Europe, “The Evolution of Human Rights” chp. 4
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moral being."
Rights are nothing more nor less than the social conditions that are required for or favorable to the
development of personality, according to Beni Prasad.13
A right is a claim to a particular course of treatment. Negative rights allow people to request that
others refrain from taking specific types of action, whereas positive rights allow people to demand
the performance of certain actions.14 For instance, the right to vote is a positive right, whereas the
right to be free from torture is a negative right. Honoring people's rights assures that they be treated
fairly and humanely.
While some rights are enshrined in law or a contract, others act as guidelines for acceptable conduct
in society. For instance, during conflict resolution, rights like reciprocity, equality, or seniority might
act as benchmarks for a just conclusion.15

EVOLUTION OF RIGHTS
The optimum date for the founding of human rights is 539 BC when Cyrus the Great's armies
conquered Babylon. Cyrus established racial equality, emancipated the slaves, and said everyone had
the freedom to practice any religion they pleased. These and other concepts were written on a baked-
clay cylinder known as the Cyrus Cylinder, whose contents served as the basis for the first four
Articles of the Universal Declaration of Human Rights.16
The Magna Charta, which was enacted in 1215, is another important turning point in the history of
human rights. It created the concept of "Rule of Law" and the fundamental notion that “everyone has
certain rights and liberties that protect them against unjust arrest and imprisonment”. Before the
Magna Charta, the rule of law was viewed as “divine justice that could only be administered by the
monarch or king, in this case, King John of England”. Today, it is recognised as a fundamental
principle for successful administration in every modern democratic society.
The English Bill of Rights is a development of the ideas outlined in the Magna Carta. William III and
Mary II, who took over as co-regents of England after the overthrow of King James II, signed it into
law in 1689. Specific constitutional and civil rights were outlined in the bill, which finally granted
Parliament control over the monarchy. Many analysts believe that the English Bill of Rights was the
key piece of legislation that created England's constitutional monarchy. It is also acknowledged as
serving as the model for the United States Bill of Rights (1791).”
13 Supra Note 11.
14 Donnelly, J., “Universal human rights in theory and practice”, Cornell University Press, 2013
15 Greenawalt, K., “Legal rights”, Routledge, 2016
16 United Nations, “Universal Declaration of Human Rights”, 1948
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One of the fundamental charters of human liberty and the source of the ideas that sparked the French
Revolution is the Declaration of the Rights of Man and of the Citizen, or Déclaration des Droits de
l'Homme et du Citoyen in French. The National Assembly of France adopted its 17 articles between
August 20 and August 26, 1789, and they served as the preamble of the Constitution of 1791. Similar
texts were used for the preambles of the Constitutions of 1793 (now known as the Declaration of the
Rights of Man) and 1795. (retitled Declaration of the Rights and Duties of Man and the Citizen).17
Hitler and the Nazi Party ruled Germany. After World War II, the world took an oath to restore
human dignity and faith. The United Nations then determined to establish human rights to ensure that
no harm would come to humans and that no one would be able to benefit of them. The Nazis caused
Jews and other groups to suffer greatly. They tortured them, starved them, used to perform various
medical experiments on them, and stole their money and property.
The Universal Declaration of Human Rights was prepared by the United Nations' human rights panel.
The UDHR was established on December 8, 1948, by the General Assembly of the United Nations
under the name International Magna Carta for All Mankind.
The preamble and 30 articles that make up the Universal Declaration of Human Rights define the
fundamentals of human rights.18
The UDHR has had a significant impact, and together with the International Covenants on Economic,
Social, and Cultural Rights and on Civil and Political Rights, they form the so-called "International
Bill of Rights," which establishes the obligations of governments to take certain actions or refrain
from taking certain actions in order to advance and defend human rights and fundamental freedoms
of individuals or groups.
Almost all UN members now have its ideas incorporated into their constitutions, and it has earned the
status of customary international law, which is viewed as a shared standard of success for all
individuals and all nations.19

The concept of rights has a rich and complex history that has evolved over time. This evolution has
been influenced by various historical, social, and cultural factors.
The concept of rights can be traced back to ancient civilizations, such as ancient Greece and Rome.
The Greeks and Romans developed the idea of natural law, which held that there were certain
universal principles of justice that were inherent in the nature of the universe and could be discovered
17 Kymlicka, W.,“Contemporary political philosophy: An introduction”, Oxford University Press, 2002
18 Shue, H., “Basic rights: Subsistence, affluence, and US foreign policy” (2nd ed.),Princeton University Press, 1996.
19 Boyd, D. R., “ The environmental rights revolution: A global study of constitutions, human rights, and the
environment” UBC Press, 2017
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through reason.20

The medieval period saw the emergence of feudalism, which was a hierarchical system based on
social status. In this system, individuals had different rights and obligations based on their position in
society. Feudalism began to break down in the Renaissance period, which saw a renewed interest in
natural law and individual rights.21

The Enlightenment period of the 17th and 18th centuries saw a significant shift in the concept of
rights. Enlightenment philosophers, such as John Locke and Jean-Jacques Rousseau, emphasized the
importance of individual liberty and the social contract. They argued that individuals had inherent
natural rights, such as the right to life, liberty, and property, and that governments existed to protect
these rights.22

The American and French Revolutions of the late 18th century saw the emergence of modern
democracy and constitutional government. The U.S. Constitution, in particular, enshrined individual
rights, such as the right to free speech, religion, and assembly, the right to a fair trial, and the right to
bear arms. These rights were seen as fundamental to the protection of individual liberty and the
preservation of democracy.23

In the 19th and 20th centuries, the concept of rights continued to evolve, with the emergence of new
social and political movements. The labor movement emphasized the importance of economic rights,
such as the right to fair wages and safe working conditions. The civil rights movement in the United
States and other parts of the world highlighted the need for equal treatment under the law and the
protection of minority rights.24

In the 21st century, the concept of rights continues to evolve, with new challenges emerging in the
areas of technology, globalization, and environmental protection. The development of new human

20 Crenshaw, K. W., “Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination
doctrine, feminist theory and antiracist politics”, University of Chicago Legal Forum, 139-167, 1989
21 Frelick, B., & Kysel, I., “Unwanted, unprotected, and unaccounted for: Migrant children in the US immigration
detention system”, Human Rights Watch, 2017.
22 Drahos, P., & Braithwaite, J., “Information feudalism: Who owns the knowledge economy?”, Routledge, 2002,
23 Strauss, L., & Cropsey, J. ,“HISTORY OF POLITICAL PHILOSOPHY”,University of Chicago Press, 1987.
24 Hoffmann, S., “THE MEANING OF RIGHTS: THE THEORIES OF THE FRENCH REVOLUTION”,Duke
University Press, 1995
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rights, such as the right to privacy and the right to a clean environment, reflects the changing social
and cultural landscape of the modern world.25

The evolution of rights has been shaped by a complex array of historical, social, and cultural factors.
The concept of rights has evolved from the idea of natural law to the modern concept of individual
rights and constitutional government. The continued evolution of rights in the 21st century will
depend on the ability of societies to adapt to new challenges and to protect the fundamental rights of
all individuals.

TYPES OF RIGHTS
Natural rights
Many academics have a strong belief in natural rights. They contend that nature grants people a
number of rights. They used to live in a state of nature before entering society and entering the state.
They were able to exercise their natural rights, such as the right to life, liberty, and property. Human
nature and reason include natural rights.

Others, on the other hand, believe that the idea of inherent rights is unreal. The byproducts of social
interaction are rights. These are only useful within a culture. Rights are protected by the state because
they have the support of society and are seen as shared claims for progress.

Moral Rights
Moral rights, on the other hand, are those that are predicated on human consciousness. They have the
support of the moral power of the human intellect. These are founded on a feeling of justice and
goodness in humans. These are not supported by the weight of the law. The sanctions that support
moral rights are a sense of virtue and public opinion.

No legal action can be taken against a person who violates a moral duty. These rights are not
enforced by the state. These rights are denied by its courts. Moral Rights are guidelines for
appropriate behavior, politeness, and morality. These represent the ethical perfection of people's legal
rights.

25 Locke, J., “TWO TREATISES OF GOVERNMENT," Cambridge University Press, 1689.

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Legal rights
Legal rights are those that the government recognises and upholds. Any infringement on a legal right
is sanctioned by the law. State law courts uphold legal rights. Both individuals and the government
are subject to these rights' enforcement. Legal and moral rights are distinct from one another in this
way. All citizens have equal access to legal rights. No one is denied their constitutional rights; they
apply to all citizens. They have the option of going to court to have their legal rights upheld.

Civil Rights
The chance for everyone to have a civilized social existence is provided by civil rights. These provide
for the necessities of human life in society. Civil rights include the right to life, liberty, and equality.
The state defends citizens' civil rights.
Political Rights
Political rights are those that allow for participation by citizens in the political process. They are able
to participate actively in politics thanks to these. These liberties include the freedoms to cast a vote,
run for office, hold public office, and criticize and oppose the government. In a democracy, citizens
actually have access to political rights.

It grants the citizens the right to political participation as well as the right to legal equality before the
law. These liberties include the ability to cast a vote, choose representatives, participate in elections,
etc. Added to them are civil liberties.
The terms "civil liberties" refer to the right to a free and fair trial, right to express one's views freely,
right to protest and express dissent.
Together, political freedoms and civil liberties form the cornerstone of a democratic government.
By holding the government responsible and elevating the concerns of the people over those of the
ruling class, they defend the rights of individuals. It also guarantees that everyone has access to equal
opportunities.

Economic Rights
The rights that give people access to economic security are known as economic rights. These make it
possible for all citizens to exercise their civil and political rights as intended. Every human has basic
needs that include things like food, clothing, housing, medical care, etc. No one can truly enjoy their
civic and political rights unless these are fulfilled. Therefore, it is crucial that everyone has the right

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to work, enough pay, leisure time, rest, and social security in the event of disease, physical
incapacity, or old age.

Need: When our fundamental needs, such as those for food, shelter, clothing, and health, are met,
only then can we fully enjoy our political rights.
Status: Democratic societies are starting to acknowledge and provide for these commitments.

RIGHT IN REM AND RIGHT IN PERSONAM: HOLLAND ON JURISPRUDENCE

Holland on Jurisprudence, written by Sir Thomas Erskine Holland in the 19th century,
provides a comprehensive analysis of the concept of rights in rem and rights in personam. According
to Holland, a right in rem is a right that can be enforced against the whole world, while a right in
personam is a right that can only be enforced against a specific person or group of persons.

Austin argues that the antecedents of rights in rem can be traced back to the Roman concept of "jus in
rem," which referred to the rights that a person had over a specific thing or property. These rights
were considered to be absolute, in the sense that they could be enforced against anyone who
interfered with them, regardless of whether or not they had any connection to the original transaction
that created the right.

In contrast, the antecedents of rights in personam can be traced back to the Roman concept of "jus in
personam," which referred to the rights that a person had against a specific individual or group of
individuals. These rights were considered to be relative, in the sense that they could only be enforced
against the person or persons who were obligated to fulfill them.

Austin argues that the distinction between rights in rem and rights in personam is important because
it determines the scope of the right and the parties against whom it can be enforced. Rights in rem are
generally considered to be more valuable than rights in personam because they can be enforced
against anyone who interferes with them, regardless of whether or not they have any connection to
the original transaction that created the right.

Overall, Holland's Jurisprudence provides a useful framework for understanding the concept of rights
in rem and rights in personam. The analysis provided by Austin is still relevant today, and continues

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to be used by legal scholars and practitioners to understand the nature and scope of property rights
and personal rights.

FIRST GENERATION RIGHTS

The political and civil rights of an individual are included in the first generation of rights. It is
possible to separate first generation rights into two subgroups. The first subcategory focuses on
"physical and civil security" standards. This involves abstaining from torture, slavery, and other
brutal practises. The standards of "civil-political liberties or empowerments" fall under the second
sub-category. This includes liberties like the ability to practice one's religion freely and the right to
vote.26

First-generation rights are centered on the individual's rights and are frequently the subject of
discussions regarding human rights in western nations. During the Cold War, western governments
started to prioritize them. The United States Bill of Rights and Articles 3 through 21 of the Universal
Declaration of Human Rights (UDHR) are some of the documents that emphasize first generation
rights.

SECOND GENERATION RIGHTS

These rights cover the essentials of existence as well as how individuals interact and collaborate.
They are founded on the principles of equality and complete access to fundamental social and
economic possibilities. With the consequences of early industrialization and the emergence of a
working class, they begin to receive an increasing amount of attention on a global scale. These
sparked fresh demands and new perspectives on what it means to live with dignity. People came to
understand that maintaining human dignity needed more than the minimal state restraint advocated
by civil and political rights. The International Covenant on Economic, Social, and Cultural Rights
(ICESCR) and the European Social Charter of the Council of Europe both include a list of social,
economic, and cultural rights.27
Social rights are the ones that are required for full engagement in society. They encompass many of
the rights commonly characterized as "civil" rights, such as the rights to recreation, health care,
privacy, and freedom from discrimination, in addition to the minimum requirements of the right to
26 The Constitution of the United States, 1787
27 King, M. L. “I have a dream” speech delivered at the March on Washington for Jobs and Freedom, Washington,
D.C.,1963.

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education and the right to start and keep a family.
The right to work, a decent quality of life, housing, and the right to a pension if you're old or disabled
are considered to be economic rights. The economic rights take into account the reality that, for
example, a lack of worthwhile work or housing can be psychologically degrading, as well as the
notion that a certain baseline level of material stability is required for human dignity.
Cultural rights are sometimes given less consideration than many other forms of rights since they
refer to a community's cultural "way of life." They may also encompass the right to education as well
as the freedom to engage in communal cultural activities. In order for minority communities within a
society to retain their unique culture, many other rights—many of which are not formally categorized
as "cultural"—will be crucial. Examples include the right to non-discrimination and equal protection
under the law.
THIRD GENERATION RIGHTS
Wide-ranging class rights are included in the third generation of human rights. Third generation
rights can also be broken down into subcategories. The first subcategory, "the self-determination of
peoples," covers several facets of societal growth and political standing. The rights of minorities,
both ecclesiastically and religiously, are covered in the second subcategory.

Third generation rights are frequently seen in contracts that fall under the category of "soft law,"
which means they are not enforceable by law. The UDHR and the 1992 Rio Declaration on
Environment and Development are two examples of such agreements. Although this generation of
rights is more frequently contested than the first and second, it is getting more and more worldwide
recognition. Due to "increasing globalization and a keen understanding of underlying global
challenges," such as extreme poverty, these rights have begun to receive more attention.28

CONCLUSION
In conclusion, understanding the variations between each generation of rights will help us better
comprehend how vast the subject of human rights is and how diverse the issues involved genuinely
are. The best way to fulfill each type of right is to use a certain style of legislation, and understanding
the different generations of rights can help us determine which sort of legislation is most appropriate
for a given situation.

28 United Nations. (1948). Universal Declaration of Human Rights. Retrieved from

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