• State unnecessary evil - anarchist
• State curtail freedom
• Hinder s- development of indiv
• Is violent
• Power corrupt , abs power corrupt abs - Lord acton ,
• Psychology of power based on submission , domination
• Marx - class instrument , coercive , harmful indiv
• Gandhi - ramrajya , Marxis - communnist state ,
• Matsya nyaya
• State necessary evil - negative libertarian , individualistic
• w/o stae no law & order
• Night watchman state
• Laissez faire - notion of limited state
• Minimum possible state activity --> ensure max possible indiv R
• Modi - minimum govt , max governance
Rights & Duties
• w/o right there can be no liberty & every state is known by the right it maintain - Harold J Laski
• Claim of indiv recognized by the society & the state
• Condition or opportunity necessary for development of holistic personality
• Potentiality -> Develop -> Favourable condition -> Claim -> Recognized by state & society -> Rights
• Right to be recognized - Common interest , universal application , social recognition, political recognition
• Right are just like moral declaration unless political recognized
• Pol. Recognition - connects disinterested claims of the indiv with sovereign auth of state
• 3 Fold character - ethical , moral , legal
• R implicit in conscience of man
• R organically bound up with duty - like coin
• Have pre political characters
• Have Natural & Social - Utilitarian Character - Locke 's th
• R not mere abstract entity
• Connected with function of state - condition , limitation
• Relation with L, E, J , S, & Law
• Universal , available irrespective of RRCSP
• Indiv centric , evolutionary in nature, dynamic , pro- social
• Assertion of R overshadowing duties
• R as claims vs R as duties
•
Natural th of Right - Locke
• Nature creator of R (universal, rational, eternal , immutable ), R rationally derived from man's nature , by birth , 'as much part of man as colour of skin'
• S evident truth , inalienable - can't be taken away
• 3R (life , liberty , property )
• Funtn of state to protect natural R of indiv(limited State)
• NR can't be surrendered to alien auth, even to govt, state
• Social cotract ; Indiv should resist , revolt , overthrow the govt , if NR violated
• Irrespective of his merit as an indiv in his personal or moral capacity , man is at least equal in human worth
• Convicted criminal - prisoner staff can't behave badly
• Shortcoming
• Introduce supernatural creator which is unacceptable in modern time - Illogical
• Indiv centeric - understate welfare state
• Extreme indiv leads to anarchism
• Doesn’t recognize political & social recognition w/o which rights is mere word
• American declaration of independence, 1776 - 'all men are endowed by their creator with certain inalienable R'
• French declaration of R of Man & citizen, 1791 - 'Man are born free & live free and are equal in their R'
• Universal Declaration of HR - "all Human being are born free & equal in dignity & R "
• Significance -
• Primitive th
• Modern HR manifestation of NR
• Individual centric - protect from tyranny of dictator
• Revolution - American , French result of violation of NR
Legal or Poitive th of R - jeremy Bentham , Austin , Hobbes
• R neither abs nor ordained from nature or creator , they are creation of law of state
• State is source , guarantor, protector of R (R relativism)
• R dynamic change with law of land (A21A-RTE, const R-86)
• Social contract - whatever sovereign accord to subj -> R
• Bentham - R arises out of and correspond to a principle of utility (utilitarianism)
• Austin - R(divine , legal , moral) -rest on relative duty on a party or parties other than party or parties in whom R reside
• Criticism
• Hocking - laws can’t make everything right - ex - R to corruption, need social recognition
• Th makes stae abs , powerful deprive ppl power of resistance
• Discard ethical consideration - whether recognized R really needed
• External standard of judging sate is needed
• R can have limitation (not abs)
• Partly correct legal recognition necessary to protect moral R
• Widely accepted in modern world
• Coercive auth need to protect R
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