Theories of Rights (AQA A-Level Law): Revision Notes
Theories of Rights
Introduction
Understanding why we have rights is just as important as knowing what rights we possess. The theories of rights explore the philosophical and sociological foundations that justify the existence of human rights in society. These theories attempt to explain where rights originate from and what gives them legitimacy and authority.
It is crucial to recognise that these are theoretical frameworks rather than established legal facts. They represent different schools of thought about the nature and source of rights, each offering a distinct perspective on how rights should be understood and implemented. As theories, they remain open to debate, critique and scholarly discussion.
Assessment note: This content is assessed in Paper 2 and focuses on the theoretical underpinnings of human rights rather than specific legal rules or cases.
What are theories of human rights?
Theories of human rights are systematic ideas and principles that seek to explain why rights exist and where they come from. They provide a framework for understanding the rationale behind granting certain protections and freedoms to individuals within society.
Natural law refers to principles and rules that guide human behaviour but are not necessarily codified in written legislation. These are norms that citizens follow based on moral reasoning and shared understanding rather than formal legal enforcement.
The five main theories of rights
Natural rights theory
Natural rights theory proposes that every person possesses inherent rights simply by virtue of being human. These rights exist independently of government recognition or approval and cannot be legitimately taken away by state authorities.
This theoretical approach has its roots in the philosophical work of John Locke, who argued that individuals possess fundamental rights from birth until death. According to this perspective, rights emerge from the natural order of human existence rather than from artificial legal constructs.
Key principles of natural rights:
- Rights are intrinsic to human existence and pre-date government formation
- They derive from natural law and the natural order of society
- The theory emphasises individual autonomy and personal freedom
- Rights form the foundation of peaceful coexistence between citizens
- This approach requires a government that respects individualism and does not seek to control every aspect of citizens' lives
- Citizens are viewed as independent actors who possess rights that the state must acknowledge
The natural rights framework centres on protecting individual liberty and creating space for people to live autonomously within society. It suggests that governments exist to protect these pre-existing rights rather than to grant them.
Central Concept: Under natural rights theory, rights are not gifts from the government - they are fundamental to human existence itself. The state's role is merely to recognise and protect what already exists naturally.
Legal rights theory
Legal rights theory presents a fundamentally different view, arguing that rights originate from the state itself rather than from nature, society or individuals. Under this framework, the government creates and grants rights as tools for maintaining social order and control.
Characteristics of legal rights:
- The state is the sole source of rights, not natural law or social custom
- Rights are deliberately formulated by governing authorities to regulate society
- The government determines which rights exist and the extent of their protection
- This theory often prevails in authoritarian systems where power is concentrated
Legal rights theory is particularly common in countries governed by despotic regimes or autocratic rulers rather than democratic systems. In such contexts, rights serve the interests of maintaining state power and control rather than protecting individual freedoms or responding to societal needs.
Critical Distinction: This approach contrasts sharply with natural rights theory because it denies that rights exist independently of state recognition. Rights become instruments of governance rather than fundamental protections.
Societal rights theory
Societal rights theory suggests that rights must be grounded in the values, beliefs and customs of a particular society. What constitutes a right in one society may not be recognised as such in another, depending on cultural, religious and philosophical differences.
Core elements of societal rights:
- Rights vary between societies based on their unique belief systems and cultural practices
- A claim becomes a right only when it serves a useful social function
- Rights must benefit the majority of citizens to gain acceptance
- Society must recognise the social utility of a right for it to be legitimate
- Rights should contribute to the collective good rather than serving only individual interests
For a protection or freedom to be established as a societal right, it must demonstrate clear value or benefit to the community as a whole. This utilitarian approach means that rights are judged by their practical contribution to social welfare and stability.
The societal rights framework recognises that different communities may prioritise different values and therefore develop different rights. Religious traditions, economic systems and historical experiences all shape what each society considers to be fundamental rights.
Historical rights theory
Historical rights theory is particularly relevant to understanding the development of rights within the English legal system. This approach views rights as emerging organically from custom, tradition and common practice over extended periods.
Foundations of historical rights:
- Rights develop through customary practice that becomes accepted across a country
- Custom creates a body of common law that evolves naturally over time
- Rights gain legitimacy through being tried, tested and accepted by society
- Historical precedent provides evidence of a right's value and workability
The English legal tradition demonstrates this theory clearly. Following the English Civil War and culminating in the Glorious Revolution of 1688, there was a deliberate effort to reaffirm traditional rights and liberties that English citizens had enjoyed historically. These rights had been gradually undermined or altered by successive monarchs who acted without democratic consultation or approval.
Historical Example: The Glorious Revolution
The revolution represented a restoration of customary rights rather than the creation of entirely new protections. It reasserted the principle that rights developed through long-standing practice should be respected and preserved.
This demonstrates how historical rights theory values continuity - rights that had evolved over centuries through English custom were formally recognised and protected against monarchical interference.
Many historical rights have their origins in religious beliefs and subsequently evolved through socio-economic developments related to trade and commercial practice. As society changed, these rights adapted while maintaining their fundamental character.
Historical rights theory values stability and continuity, suggesting that rights which have stood the test of time have proven their worth and should be preserved. This conservative approach trusts in established practice over revolutionary change.
Economic rights theory
Economic rights theory, developed by Karl Marx, offers a critical analysis of how rights function within capitalist societies. This theory argues that legal rights primarily serve to protect and reinforce the interests of economically dominant groups.
Marx's fundamental critique: Rights do not derive from natural law or custom but are deliberately constructed to benefit the powerful at the expense of the vulnerable. What are presented as universal rights actually serve to maintain existing power structures and economic hierarchies.
Marx's critique of economic rights:
- Rights are maintained through laws that protect those who control the production of goods and services
- A class system emerges and is perpetuated through the structure of rights
- Society divides into exploiters (the economically powerful) and the exploited (workers)
- The most economically powerful groups exert dominant influence over government or effectively become the government themselves
- This system inevitably produces inequality and discrimination
Marx fundamentally challenged the legitimacy of rights in capitalist societies, viewing them as tools of oppression rather than genuine protections. He argued that such a system represents an affront to democratic principles because it concentrates power in the hands of those with economic control.
According to Marx, authentic rights can only exist in a classless society where economic power is distributed equally. In capitalist systems, what are presented as universal rights actually serve to maintain existing power structures and economic hierarchies.
This theory encourages critical examination of whose interests are served by particular rights and how legal frameworks may perpetuate social and economic divisions. It challenges the notion that rights are neutral or universally beneficial, suggesting instead that they reflect and reinforce existing power relationships.
Exam guidance
Understanding the theoretical nature of this topic:
When writing about theories of rights in exam answers, remember that you are discussing philosophical frameworks rather than established legal principles. This distinction is crucial because:
- You should present theories as contested ideas rather than definitive facts
- There is scope for analysis, debate and critical evaluation
- You can discuss strengths and weaknesses of different theoretical approaches
- Multiple theories can be compared and contrasted
- Your answers should demonstrate critical thinking rather than simple description
Approaching exam questions:
This topic has a strong sociological dimension alongside its legal aspects. Questions may ask you to:
- Explain the origins and justifications for human rights
- Compare different theoretical frameworks
- Evaluate which theory best explains rights in contemporary society
- Discuss the implications of adopting different theoretical approaches
Focus on demonstrating your understanding of why we have rights rather than simply describing what rights exist. This theoretical foundation helps explain the deeper purpose and legitimacy of human rights protections.
Summary
Key points to remember:
- Theories of human rights are systematic ideas that explain the rationale and origin of rights based on general principles
- Natural rights theory (John Locke): rights are inherent to human existence and cannot be removed by government
- Legal rights theory: rights originate from the state and are created to maintain social order
- Societal rights theory: rights must serve social utility and benefit the majority to be legitimate
- Historical rights theory: rights develop through custom and tradition over time (particularly relevant to English law)
- Economic rights theory (Karl Marx): rights serve to protect economically powerful groups and maintain class divisions
- These are theoretical frameworks, not established legal facts, and remain open to debate and criticism
Key terms:
- Theories of human rights: systems of ideas explaining why rights exist
- Natural law: unwritten rules followed by citizens based on moral principles
- Social utility: the practical value or benefit that something provides to society
- Glorious Revolution (1688): the reaffirmation of traditional English rights and liberties
- Class system: division of society into groups based on economic power and social status
Critical approach:
- Recognise that different theories offer competing explanations for the same concept
- Some theories (natural rights, historical rights) emphasise rights as pre-existing or emerging from society
- Other theories (legal rights, economic rights) view rights as constructed by those in power
- Societal rights theory takes a middle position, linking rights to community values and benefits