Theories of human rights
Human Rights Law and Practice · Unit I · Topic 3 of 18 · 6 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Natural rights theory
Answer: human rights come from nature, reason or God, and exist before and independently of any State.
The theory grows out of natural law. Aquinas held that human law derives its authority from natural law. Grotius (De Jure Belli ac Pacis, 1625) argued that natural law would bind even if God did not exist, because it rests on human reason and sociability. John Locke turned natural law into natural rights: in the state of nature every man has rights to life, liberty and property; people form a government by social contract only to secure those rights, and a government that invades them breaks the contract and may be resisted. Locke’s ideas are written into the American Declaration of Independence (1776) and the French Declaration (1789), and the UDHR’s language of rights with which all human beings are “born” is in this tradition.
Criticism. “Nature” is vague; different thinkers have derived opposite conclusions from it (slavery was once defended as natural). The theory explains why rights matter morally but gives no machinery to enforce them.
2. Positivist theory
Answer: rights exist only when and to the extent that a law made by a sovereign confers them.
Jeremy Bentham called natural rights “simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts”. For John Austin, law is the command of the sovereign backed by a sanction, and a right is the benefit of a duty so imposed. On this view the source of human rights is the treaty, the constitution or the statute.
Value. Positivism explains why codification matters: a right written in the ICCPR or Part III can be enforced, and a right that is only claimed cannot. Criticism. If rights are whatever the sovereign grants, the sovereign may take them away; the theory has no answer to a lawful tyranny such as Nazi Germany or apartheid South Africa. This is the point at which post-1945 thought turned back towards natural law.
3. Utilitarian theory
Answer: rights are justified to the extent that they promote the greatest happiness of the greatest number.
Bentham founded utilitarianism; J.S. Mill (On Liberty, 1859) defended individual liberty on utilitarian grounds and stated the harm principle: power may be exercised over a person against his will only to prevent harm to others. Criticism. If the general happiness is the test, the rights of an unpopular minority can be sacrificed whenever the majority gains. Human rights exist precisely to stop that.
4. Marxist theory
Answer: rights are a product of the economic structure of society, and the liberal “rights of man” are the rights of the property-owning class.
In On the Jewish Question (1843) Marx criticised the French Declaration’s rights as rights of egoistic man, separated from the community. Civil liberties mean little to a worker without food or work. The socialist states therefore stressed economic and social rights (work, housing, health, education) and treated them as duties of the State. This tradition is the main reason the UN produced two Covenants instead of one. Criticism. In practice the socialist states suppressed civil and political freedoms in the name of collective welfare.
5. Liberal theories of justice
- John Rawls, A Theory of Justice (1971). Behind a “veil of ignorance”, not knowing their own place in society, rational persons would choose two principles: (1) each person has an equal right to the most extensive basic liberties compatible with a like liberty for others; (2) social and economic inequalities are permitted only if they benefit the least advantaged and attach to offices open to all under fair equality of opportunity. The first principle has priority.
- Robert Nozick, Anarchy, State and Utopia (1974). Individuals have rights that act as side-constraints on what others and the State may do; only a minimal State is justified; redistribution by taxation violates the right to property.
- Ronald Dworkin, Taking Rights Seriously (1977). Rights are “trumps” over collective goals: a right means that the State may not override it merely because the general welfare would be served. The basis is the right of each person to equal concern and respect.
6. Sociological and realist theory
Answer: rights arise from the needs of social life and are recognised as law responds to social interests.
Roscoe Pound’s theory of social interests treats law as social engineering that balances individual, public and social interests. Harold Laski defined rights as “those conditions of social life without which no man can seek, in general, to be himself at his best”. The theory explains why rights change over time and why courts balance them against each other. Criticism. It describes how rights develop but gives no fixed core that society may not override.
7. Dignity and capability theories
Modern instruments rest on human dignity. The UDHR begins with “the inherent dignity and of the equal and inalienable rights of all members of the human family”; both Covenants say the rights “derive from the inherent dignity of the human person”. Kant’s principle that a person must be treated always as an end and never merely as a means is the usual philosophical source.
The capability approach of Amartya Sen and Martha Nussbaum asks what a person is actually able to do and to be: to live a normal span of life, to be healthy, to be educated, to take part in political life. Rights are the means of securing those capabilities. This approach explains the interdependence of civil and economic rights, and the Indian Supreme Court’s reading of Article 21 as the right to live with dignity, including “the bare necessaries of life such as adequate nutrition, clothing and shelter”, in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, 1981 INSC 11, (1981) 1 SCC 608, rests on the same idea.
8. Universalism and cultural relativism
Universalists hold that human rights apply to all people in the same way. Cultural relativists argue that rights are a Western product and must be read in the light of each society’s values; the Bangkok Declaration of Asian states (1993) asked that rights be considered in the context of national and regional particularities. The Vienna Declaration of 1993, paragraph 5, settled the official position: the significance of national and regional particularities must be borne in mind, but it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights.
9. Rights and duties: the Gandhian view
Asked by UNESCO in 1947 for his view on a declaration of rights, Gandhi replied that he had learnt from his mother that all rights to be deserved and preserved came from duty well done. Duties are not foreign to the instruments: UDHR Article 29(1) says everyone has duties to the community, the African Charter lists the duties of individuals (Articles 27 to 29), and Article 51A of the Indian Constitution lists fundamental duties.
How this is examined
January 2026: “Explain different theories of human rights” (10 marks). June 2025: “Write a note on theories of human rights” (6 marks). For the essay take natural rights, positivism, utilitarianism, Marxism, the liberal theories and the dignity basis, in that order, and close with universalism versus relativism. For the note, four theories with one sentence of criticism each are enough. Quote Bentham’s “nonsense upon stilts” and Dworkin’s “rights as trumps” accurately; both are easy marks.
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