Exploring the Theories of Rights

Why do we have rights at all, and where do they actually come from? Are they something we are born with simply because we are human, or are they gifts handed to us by the state? Political theorists have argued over these questions for centuries, and the answers they reached are surprisingly different from one another. Some say rights exist in nature itself, others insist they are nothing more than what the law allows, and a few argue that rights are really just tools that protect the interests of the powerful. Understanding these theories helps us think more clearly about the rights we claim every day, from the right to free speech to the right to property.

What do we mean by a “theory of rights”? 🔗

A theory of rights is an explanation of the origin and nature of rights. It tries to answer two basic questions: where do rights come from, and what makes a claim a genuine right rather than just a wish? Different thinkers answered these questions in different ways, and their answers fall into five broad schools. Each one captures something important, and each one has its weaknesses. Let us look at them one by one.

The natural rights theory 🔗

This is the oldest and most influential of all the theories. The core idea is simple: rights belong to human beings by virtue of their nature, not because any government grants them. These rights are said to be inherent and inalienable, meaning they cannot be taken away or surrendered. The classic list includes the rights to life, liberty, and property. The roots of this idea reach as far back as ancient Greek and Roman thought, but it took its modern shape in the seventeenth and eighteenth centuries.

Hobbes, Locke, and Rousseau 🔗

Three philosophers shaped this theory through the idea of the state of nature, a hypothetical condition of human life before governments existed. Thomas Hobbes, John Locke, and Jean-Jacques Rousseau each used this idea, but they reached different conclusions.

For Hobbes, life in the state of nature was dangerous and insecure, so people had an almost unlimited natural right to do whatever was needed to survive. To escape this chaos, they handed over their rights to a strong sovereign in exchange for order. Locke took a gentler view. He argued that even in the state of nature people possessed natural rights to life, liberty, and property, and that government exists mainly to protect these pre-existing rights. Rousseau emphasised the idea of the general will and natural freedom, arguing that legitimate authority must rest on the consent of the people. Locke’s version proved especially powerful, shaping the American Declaration of Independence and later being borrowed by campaigners against slavery and by early defenders of women’s rights.

Criticisms of natural rights 🔗

The theory has been attacked from many sides. Critics argue that rights cannot float free of society; they need recognition and protection to mean anything in practice. The British theorist Harold Laski argued that rights are not absolute or pre-social but are the conditions necessary for people to develop their personalities within a community. The sharpest attack, though, came from Jeremy Bentham, who leads us neatly into the next theory.

The legal theory of rights 🔗

Where the natural rights school looks to nature, the legal theory looks to the state. It holds that rights are created, defined, and enforced by law. Outside a legal framework, the theory says, there are no real rights at all. This view is closely linked to legal positivism, the school of thought associated with Jeremy Bentham and John Austin, which treats law as a matter of social fact distinct from morality.

Bentham and the attack on natural rights 🔗

Jeremy Bentham, the founder of utilitarianism, had no patience for the idea of natural rights. He famously dismissed them as “nonsense upon stilts.” For Bentham, a right exists only when the law imposes a corresponding duty on someone else. Rights are therefore instruments created by the state to promote the greatest happiness of the greatest number. They are useful tools, not gifts of nature.

Austin and Hegel 🔗

John Austin, a disciple of Bentham, built the command theory of law. On Austin’s view, a law is valid when it is commanded by a sovereign who is habitually obeyed and is backed by the threat of a sanction. Rights, in this scheme, are simply what the sovereign permits and protects. Georg Wilhelm Friedrich Hegel approached the matter differently. He saw the state as the embodiment of an ethical idea, and legal rights as the expression of a universal will. For Hegel, the state does not merely restrict freedom; it actually makes individual freedom real by providing the legal structure within which rights can exist. The obvious strength of this theory is that it is realistic and concrete. Its weakness is that it offers no ground for criticising an unjust law, since whatever the state grants becomes a right by definition.

The historical theory of rights 🔗

The historical theory rejects the idea that rights are either timeless gifts of nature or sudden creations of the state. Instead, it argues that rights are the products of long-standing customs and traditions that have grown slowly over generations. Its most famous spokesman was the Anglo-Irish statesman Edmund Burke.

Burke and the lessons of the French Revolution 🔗

Burke argued that rights evolve over time and are rooted in the actual historical experience of a community rather than in abstract reasoning. He was deeply critical of the abstract “rights of man” proclaimed during the French Revolution, viewing them as dangerous and impractical because they ignored the accumulated wisdom of custom. For Burke, rights are an inheritance passed down from earlier generations, and the safest way to reform them is through gradual change rather than violent upheaval. This theory captures an important truth: many of our rights really did develop through historical struggle and convention. Its weakness is that custom alone is a poor guide, since many old customs, such as slavery or caste discrimination, were deeply unjust and clearly deserved to be abolished rather than preserved.

The social welfare theory of rights 🔗

The social welfare theory shifts the focus from where rights come from to what rights are for. It argues that a right exists because, and to the extent that, it serves social welfare and the well-being of the community. A claim becomes a genuine right only when recognising it benefits society as a whole. The leading figures here are the American jurists Roscoe Pound and Zechariah Chafee.

Pound and social engineering 🔗

Roscoe Pound is the central figure of sociological jurisprudence, an approach that treats law as a living instrument of social control rather than a fixed set of rules. Pound famously described the task of law as a kind of “social engineering,” in which the legal system balances competing interests to satisfy the maximum number of human wants with the least friction and waste. He classified these interests into three groups, individual, public, and social, and argued that the law recognises a right when it secures an interest worth protecting. This theory is attractive because it links rights to practical human needs. Critics, however, including Harold Laski, charged that Pound’s scheme could simply reflect the values of the existing social order rather than challenge them, and that balancing diverse interests is extremely difficult in a society full of competing groups.

The Marxist theory of rights 🔗

The Marxist theory offers the most radical critique of all. For Karl Marx and Friedrich Engels, rights cannot be understood in isolation from the economic structure of society. Every society, they argued, has an economic base, the way goods are produced and owned, and on top of this base sits a “superstructure” of laws, politics, and ideas. Rights belong to this superstructure, which means they are shaped by economic conditions and the relations between classes.

Rights as a reflection of class interest 🔗

According to the Marxist view, the rights guaranteed in a capitalist society are not neutral. They tend to reflect and protect the interests of the ruling class, the owners of the means of production, while presenting themselves as universal and fair. The much-praised right to private property, for example, mainly benefits those who already own property. Marx and Engels believed that genuine freedom and equality could not be achieved by simply declaring rights on paper. They argued that real liberation required abolishing private property and class divisions altogether, leading eventually to a classless, communist society in which the old framework of rights would no longer be necessary. The strength of this theory is its insistence that we examine who actually benefits from a given right. Its weakness, critics say, is that it tends to dismiss individual rights too quickly, which can leave individuals exposed in the very states that claim to act in their name.

Bringing the theories together 🔗

No single theory tells the whole story, and that is precisely why studying all five is useful. The natural rights school reminds us that some claims feel basic to human dignity. The legal theory keeps us grounded in the reality that rights need enforcement to matter. The historical theory shows that rights grow through experience. The social welfare theory connects rights to genuine human needs. And the Marxist theory forces us to ask the uncomfortable question of who really gains from the rights we celebrate.

These debates are not merely academic. The fundamental rights guaranteed in a written constitution, for instance, can be read as legal rights created and enforced by the state, while the campaigns that won those rights drew on the language of natural rights and unfolded through long historical struggle. The directive principles that ask the state to promote welfare echo the social welfare approach. In real life, these theories overlap far more than the textbooks suggest.

What do you think? Do you believe rights are something we are born with as human beings, or are they entirely the creation of the state and its laws? And when a right mainly benefits one group in society, should we still call it a universal right at all?

References

1. https://www.cambridge.org/core/books/abs/natural-rights-liberalism-from-locke-to-nozick/introduction/611FB58FC3621A6875975FD1D3FB38BA
2. https://firstamendment.mtsu.edu/article/natural-rights/
3. https://plato.stanford.edu/entries/legal-positivism/
4. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3495&context=mlr
5. https://iep.utm.edu/legalpos/
6. https://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1522&context=vlr
7. https://scholarship.law.edu/cgi/viewcontent.cgi?article=3100&context=lawreview
8. https://ebooks.inflibnet.ac.in/hrdp01/chapter/marxist-theory-of-rights/
9. https://en.wikipedia.org/wiki/Marxian_class_theory