This article is written by Abhishek Kumar, from NUSRL, Ranchi.
Human beings are a social animal. We live together, communicate with each other and help each other directly or indirectly in living together. This is what all is meant by being social. In this fast-growing world of competition people or an individual might think of serving their interests and needs which ultimately leads to the welfare of society and the state as a whole. What we do and we aim to do is for our well being but there is always an invisible hand working which though every individual thinks about serving their interests but ends up in doing good to the society. The very reason for the same is being a social animal we cannot think our life without the society and its people and if that is the case then how can we directly or indirectly do anything which harms the society because after all we too have to live here and if others are not able to survive in the worst society than how can they cooperate us to survive there happily.
So, the basic idea of a people living in a society is serving their interests best without intentionally causing harm to nature and its people. Although the exceptions are always there who suffer along with their wrongs and are always discarded by the crowd and the people in the society.
It is evident since the very history of this world that people have to come together to serve their interests best and to live a life without threat in this world. This is what lead to the establishment of the state. The state has included, from its very beginning, a reference to a land and a people, but this alone would not constitute the state. There are four major constituents of the state. These are the people, territories, government and sovereignty. And hence, state refers also to a unity of legal and political authority, regulating the outstanding external relationships of man in society, existing within society. It is what does, i.e., creates a system of order and control, and for this, is vested with the legal power of using compulsion and coercion.
A state thus is found in its elaborate system. It is found in its institutions which create laws and which enforce them, i.e., it is found in the bureaucratic institutions which are attached to every executive branch of the government. It is found in the institutions which are called into operation when its will is challenged, i.e., the military and the police. The state is the total of these institutions.
Ralph Miliband(The State in Capitalist Society)writes, “These are the institution the government, and the parliamentary assemblies, the military and the police, the judicial branch, sub-central government and the parliamentary assemblies, which make up the state ..”In these institutions lies the state power; though from these institutions come the laws of the state, and from them spring the legal rights of using physical force.
The early readings give various theories about the state formation, the force theory being the most ancient one speaks about a sovereign being physically powerful ceases over certain territories and rules over its people until is overpowered by someone stronger; the Divine theory whereas gives the power to an individual and the king, supposed to be directly elected by the God himself to rule over the people in a specific territory, then comes the matriarchal and patriarchal theories which considers the mother and father of the family respectively to be its head which subsequently forms the village and hence the state. These are certain theories which speak about the very origin of the state. And clearly shows the importance of the sovereign individual or the group of members who rule over the people in a specific territory. These are however criticized on the broader platform by many philosophers of the ancient as well as modern time. However not to forget here is its four major components which were then and are still regarded as an essential feature of the state.
Sovereignty is considered to be one of the most important and permanent features of the state. It is often said that a state without sovereignty is no state. Social contract theories, the pluralistic theory and the popular theories are basic theories given by some of the renowned English philosophers are considered to be the theories for the development of the term sovereignty. Although the sovereigns are different in each case. In 16th century France, Jean Bodin (1530- 96) used the new concept of sovereignty to strengthen the power of the French king over the conventions of the feudal lords, facilitating the transition from feudalism to nationalism. The thinker who did the most to provide the term with its modern meaning was the English philosopher Thomas Hobbes (1588-1679), who argued that in every true state some person or body of persons must have the ultimate and absolute authority to declare laws, to divide its authority, he held to essentially destroy the unity of the state. The theories of the English philosopher John Locke(1632-1704) and the French philosopher Jean Jacques Rousseau(1712- 78), that the state is based upon a formal or informal compact of its citizen, a social contract through which they entrust such powers to a government as may be necessary for common protection, led to the development of popular sovereignty. Where it was held that sovereignty belonged to the nation and no group can attribute sovereignty to itself nor can an individual arrogate it to himself. In the 19th century, the English jurist John Austin (1790-1859) developed the concept further by investigating who exercises sovereignty in the name of the people of the state: he concluded that sovereignty is vested in a nation’s parliament.
Although the government and sovereignty are major components of the state government is not a permanent feature. To understand the things in a clear way it is very essential to look at certain differences between the sovereign and the government. The sovereign is absolute, inalienable, permanent, supreme and all-powerful, whereas the government is not permanent and keeps on changing after its certain specified tenures. The state never gives rights, they recognize them; the government never grants rights, they only protect them. This even gives the concept that the rights are protected interests.
The concept of rights goes hand in hand along with the duties. That is where there is right there is a duty. Rights are considered to be the protected interest which an individual is entitled to by an authority which comes with a specific duty. Laski in his theory correlates the rights with duties and functions. No individual can have any right without performing his duties and functions in society.
Whereas human rights to develop with the duty which is towards society and the state as a whole. And hence the term duty plays a major role when speaking of rights. Rights emanate from society, from peculiar social conditions, and, therefore, they are always social. Rights are individuals ‘rights, they belong to the individuals, they exist for the individuals and are exercised by them to attain the full development of their personalities. As a social being we have to be well with society and to think about the welfare of its people and in return gets the rights to live freely, peacefully and happily without any threat. The idea of human rights developed out of the natural rights theories of the early modern period. Such theories arose primarily out of the desire to establish some limits upon how individuals may be treated by others especially by those who wield political powers. However, if the rights have to act as a check upon political authority, they must in a sense be ‘pre-legal’, a law is merely the creation of the political authority.
Rights are indeed claims, but every claim is not right. A claim is not a right if it is not recognised, it is not a right if it is not enforced. Claims which are not recognised are empty; claims not enforced are powerless claims. Claims become rights when they are recognised by society. They become rights when they are maintained, enforced and protected by the state. And hence state plays a vital role when the concept of right comes into play.
Since very ancient history, we have been getting the concept of natural rights. The rights which we get generally by birth and are given by nature are considered to be the natural rights. It may include the right to live, the right to use natural resources, the right to be free and so on. Many philosophers had contributed to recognizing various natural rights of peoples since their time being. In the 17th century, John Locke the founder of the social contract theory identified right to life, right to liberty, and right to property as natural rights. And after a century Thomas Jefferson added the right to pursue happiness and removed the right to property from it. These rights were described as natural in that they were thought to be given by God and therefore to be part of the very core of human nature. Further, the theory of natural rights was proposed by Hobbes and Locke. These theories treated the rights of men as “self -evident” truth. Those rights were not granted by the state but come from the very nature of men. To quote Hobhouse: “Rights are what we may expect from others and others from us, and all genuine rights are conditions of social welfare. Thus, the rights anyone may claim are partly those which are necessary for the fulfilment of the function that society expects from him. They conditioned by, correlative to, his social responsibilities.”
With the change in the decades or with the change of the mindset of the people from time to time, people start realising about various rights entitled to them either naturally or should be entitled to them either politically or by society and the state or by its sovereign. And this led to the formation of various theories, given by different historians. Such as, the legal Theory of rights, proposed by Bentham and Spencer which suggested that all rights of the men depend on the state for their existence. There can be no right in the proper sense of term unless it is so recognised by the state. There are no absolute rights. There are no rights inherent like men as such. There were no rights before the state and they came into existence with the state itself. So, this theory suggests that if the concept of state sovereignty prevails that there are no rights that are being called as an absolute do exist. Which shows that the state sovereign is before the rights entitled to the humans and that they can mould it according to their requirements and orders.
Then comes the Historical theory of rights. History cannot be ignored, but history cannot be relayed on alone. According to this theory rights are a product of long historical evolution of society and are based on traditions and customs with the changes in time and circumstances, rights also change. People have a right over anything that they exercise or enjoy uninterruptedly over a fairly long passage of time. It cannot be admitted that all our customs result in rights, the sati system does not constitute a right nor does infanticide. Whereas the idealist theory of rights, on the other hand, looked at rights from a high moral point of views.
The state being a sovereign entity is responsible to check for the welfare of the people in a society. And this can best be explained through the social welfare theory of rights, where the rights are considered to be the conditions of social welfare. Rights are created by society and they aim at realising social welfare. And the state recognises only such rights to help promote social welfare. No individual can be given rights against the welfare of society. Rights are not given to anti-social individuals. They are always restricted in the interests of society.
Human beings are born equal in dignity and rights. These are moral claims which are inalienable and inherent in all individuals by their humanity alone, irrespective of caste, colour, creed, and place of birth, sex, cultural differences or any other consideration. The Marxist theory of rights given by one of the greatest philosophers of all times welcomes the existence of civil and political rights in the contemporary bourgeois-democratic state because they represented an advance from the condition of men in a state based on the slavery of feudalism. The prevailing rights enable the working class to organise themselves and raise their demands for their betterment rightfully. Marx also felt that in a class-divided society through rights were granted in general terms only the members of the ruling class could take advantage of them.
Human rights are the rights to which people are entitled to being human. they are universal rights in the sense that they belong to all human beings rather than to a member of any particular nation, race, religion, gender, social class or whatever. Human rights are also fundamental rights in that they are inalienable which means it cannot be traded away or revoked.
Being two of the major parts of the state, sovereignty and the rights should be given special emphasis. And the best of it can be explained by showing the relationship between state sovereignty and the rights. The two are said to two faces of the same coin, that is the state. The fact that the state sovereignty is for the welfare of the people as a whole in the state. The rights are generally vested upon an individual. The sovereignty is characterised as absolute and permanent for the state and cannot be destroyed without destroying the state itself. It can be divided neither can be alienated. Whereas the rights can neither be destroyed without destroying the individuals in the state and cannot be divided, they stand alone and inalienable from person to person.
Human rights are inherent in all individuals irrespective of their caste, creed, religion, sex and nationality. Just as there is the requirement and necessity of sovereignty for the existence of the state so as rights are important for the existence of the human beings in society as in absence of human rights, the moral, physical, social, and spiritual welfare of an individual is impossible.
Sovereignty can be regarded as a soul for the state. As it enables the state with its absolute and supreme power. It is rightly pointed by one of the philosophers that sovereignty can be limited, neither for a small duration nor for a long period. And if it has, no matter how long or short the period may be, it is no sovereignty and the individual or the group enjoying its power is no sovereign. And as seen that the state is sovereignty, therefore being sovereignty, the state enjoys absolute power. And without this the existence of a free state is impossible and hence it can be called the soul of the state. The Human rights on its term are the livelihood for the individual and are also very essential as they provide suitable conditions for material and moral upliftment of the people. They are in connection with human dignity, to treat another individual with dignity irrespective of the fact that the person is a male or female, rich or poor etc.
Both sovereignty and rights are universal in nature. It remains similar and is accepted by all the states and the individuals respectively, all over the world. No government has the power to curtail or take away the rights. Human rights are not a monopoly of any privileged class of people. Rights are universal in nature, without consideration and exception.
Although the sovereignty and the rights go hand in hand they are not all similar. Neither in their meanings nor does in their feature which is called absolute, the sovereignty is characterised as absolute whereas human rights are never absolute, man is a social animal and he lives in a civic society, which always put certain restrictions on the enjoyment of his rights and freedom. They are such are those limited powers or claims, which are contributory to the common good. Human rights are even dynamic and not static. It expands and compresses along with the nature or environment of society. Human rights limit the state’s power. These may be in the form of negative restrictions, on the powers of the state, from violating the inalienable freedoms of the individuals, or like demand on the state.
So, from the different theories and characteristics of about, we can conclude that human rights are moral principles or norms that describe certain standards of human behaviour and are regularly protected as natural and legal rights in municipal and international law. Human rights are norms that aspire to protect all people everywhere from severe political, legal, and social abuses.
State sovereignty can greatly hinder global enforcement and implementation of human rights: “Sovereign states not only are creating the international norms for the protection of human rights but also determining the process of their implementation-or non-implementation. Effectively, respecting state sovereignty means that any tangible human rights enforcement mechanism must come from states own domestic legal system, meaning in turn that in cases where a state ignores or itself carries out human right abuses, the principle of the state sovereignty comes into conflict with any possibilities for resolution.”
On the other side as the term, the ‘human rights’ implies that all people regardless of nationality should be granted rights, human rights discourse has the potential to undermine governments traditional claims to the inviolability of state sovereignty. When human rights are framed as more inviolable than state sovereignty, the human rights regime can claim humanitarian grounds to impinge on the state sovereignty and put the state’s treatment of its citizens under scrutiny. The balance between state sovereignty and human rights is shifting in favour of increasing permissiveness towards cross-border action to protect human rights. In practice, however, this supposed primacy of human rights over state sovereignty is rarely applied.
Human rights are the cornerstone underpinning the rule of law and state sovereignty. They are an essential tool enabling states to ensure that every person can live with dignity, whatever their gender, race, nationality or another status.
The mutual relationship between the sovereignty of the state and the freedom of the individual continually gains importance for the development of international law. The classical concept of unrestricted sovereignty necessarily results in a contradiction with individual rights if the latter is based on a legal justification finding its source beyond the power of the state.
Unrestricted sovereignty consists in the lawful power of a state to arrange its internal and external affairs alone and without interference by other sovereign powers so that sovereignty seems to be free from any obligation in dealing with rights and duties of the individuals living its jurisdiction.
This view, however, does no longer correspond to the requirements of the now existing legal situation since the freedom of the individual, forming part of international human rights, is now considered not to be subjected to every compulsory measure of the state power, if the sovereign would limit the free development of personality intolerably. Although one cannot deny that theory and practice are far from being reconciled, the principle as such is no longer contested.
This principle shows that both this rights-freedom of the sovereign state and freedom of the individual-are equally objects of the legal protection under the law.
So, sovereignty has its importance as it acts as an essential for consisting or formation of the state. And rights are the essential and basic requirement of the people, and people or population is also an important element for the formation of the state. We can conclude that both rights and sovereignty have equal importance. They both are dependent on each other. They both are the pillars for constituting state and people.
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