Introduction

• Definition of HR:
Ganeral: Human rights are the basic rights and freedoms that every
person in the world should have.
Jack Donnelly: "Human rights represent a social choice of a
particular moral vision of human potentiality, which rests on a
particular substantive account of the minimum requirements of a life
of dignity"
OHCHR: Rights that every human being has virtue of his/her human
dignity.
• Types of HR:
 There are two main types of human rights – civil and political
rights, and social, cultural and economic rights.
Civil and political rights
• The right to life and liberty
• Freedom of expression
• Equality before the law
• The right to be free from discrimination

Social, cultural and economic rights

• The right to participate in culture
• The right to work
• The right to an adequate standard of living
• The right to education
 Core Theories of HR:
1) Natural Rights Theory

Natural rights - not dependent on the laws, customs, or beliefs of any

particular culture or government, and therefore universal and inalienable .
John Locke: men are free, equal, and independent.
natural rights were life, liberty and property, and that all people
automatically earned these simply by being born.
Two Treatises of Government: men are by nature free and equal against
claims that God had made all people naturally subject to a monarch.
used the claim that men are naturally free and equal as part of the
justification for understanding legitimate political government as the result
of a social contract where people in the state of nature conditionally transfer
some of their rights to the government in order to better ensure the stable,
comfortable enjoyment of their lives, liberty, and property.
According to Locke there are three natural rights:
Life: everyone is entitled to live.
Liberty: everyone is entitled to do anything they want to so long as it
doesn't conflict with the first right.
Estate: everyone is entitled to own all they create or gain through gift
or trade so long as it doesn't conflict with the first two rights.
Locke also defends the principle of majority rule and the separation of
legislative and executive powers.
• Limited Government
by advocating that a restrained government is the best way to protect
rights.
Eg:the right to property is one of the natural rights and therefore
pre-political. As a result government cannot violate this right.
There are certain important rights, upon which the government cannot
infringe. Although Locke stays rather neutral on the question of what
form of government is appropriate, he stresses that a limited
government is given by consent and restricted by subordination of
power.
The right to revolution is another important element and justification
for a limited government. When governments become repressive or
when they become abusive of natural rights, people have a right to
turn against their government. (Steven Smith)

Thus, Locke establishes a framework for government in which the

sovereign can be held accountable by and it is justified in so far as the
people have the right to replace a government that is using its power
arbitrarily and is not upholding its duties of protecting natural rights.
2) Positivist Theory

the nature of law, commonly thought to be characterized by two major

tenets: first, that there is no necessary connection between law and morality;
and second, that legal validity is determined ultimately by reference to
certain basic social facts.
The greatest opponent of “natural rights” was the 19th century positivist
philosopher Jeremy Bentham. Bentham considered "natural rights[to be]
simple nonsense" and "natural and imprescriptible rights, rhetorical
nonsense, - nonsense upon stilts.”
The nonsense of natural rights according to Bentham had to do, not with the
formation of the substantive, but with the severance of a juridical notion
from the context of positive law.
In sum, from the positivist perspective, the right to participatory
development does not yet exist in any legal sense.
• The critiques
Bentham was wrong; it is not nonsense to talk about natural rights.
 Natural rights can be understood as universal moral rights, arising
from claims man naturally makes.
But of course it is not enough to just have a moral right; one wants to
have that right respected.
As Professor H.L.A. Hart has said, "Men speak of their moral rights
mainly when advocating their incorporation in a legal system." The
demand is for the translation of moral rights into positive.
Professor C.B. Macpherson expressed it well: Any doctrine of human
rights must be in some sense a doctrine of natural rights. Human rights
can only be asserted as a species of natural rights, in the sense that
they must be deduced from the nature (i.e., the needs and capacities)
of men as such, whether of men as they are now or as they are capable
of becoming.
 References
• Locke, John (1689) The Second Treatise of Government. (New York: Dover
Publications, 2002)
• Freeman, M. (1994). The Philosophical Foundations of Human Rights. Human
Rights Quarterly, 16(3), 491.
• Simma, B. & Paulus, A. (1999). The Responsibility of Individuals for Human
Rights Abuses in Internal Conflicts: A Positivist View. The American Journal Of
International Law, 93(2), 302.