POLITICAL SCIENCE INTERNAL 3

LIBERTY, RIGHTS AND DUTIES

LIBERTY
● The word liberty is derived from the latin word liber which means free or absence
of restraint .The desire for liberty led to wars and revolutions.
● It is a word of negative meaning denoting absence of restraint. ‘Unrestrained'
does not mean 'unregulated'. It simply implies that the activities in question
should not be subjected to 'unreasonable restraints'.
● Its primary significance is to do what one one likes regardless of all
consequences. But this is obviously an impossibility . liberty in the sense of a
complete absence of restraint cannot exist because we cannot live together
without common rules . If I choose to do all that I wish , regardless of the
interests of others among who I live,there is likely to be conflict and conditions of
chaos and anarchy in the society. By liberty therefore we mean freedom to
everything provided that it does not injure the freedom of others. It implies
necessary restraint on all inorder to ensure the greatest possible amount of
liberty for each.
● Reasonable restrictions do not destroy liberty , it is only destroyed when such
restraints are arbitrary and unjust. “ if restrictions embody an experience i can
follow and accept”, my liberty is not endangered.It is really enhanced.
● The concept of liberty carries three connotations—the notion of choice, the
absence of constraints to make and exercise such a choice, and the existence of
conditions that enable you to actuate the choice.
● There is a need to draw a boundary between liberty, license and authority of the
state for the proper enjoyment of liberty because if the claim of an individual is
stretched to an extreme in utter disregard of the interest of society liberty would
be reduced to ‘license’( A thief's liberty to take away anybody's property would
become a threat to everybody's security) {one man's liberty would become
another's constraint or oppression}. Whereas if the liberty of the individual is
increasingly restricted in the interest of society, it would be unconditional
submission to authority and therefore loss of liberty(the regulation of liberty
becomes necessary to safeguard liberty itself. Authority is justified if it is backed
by moral support and legitimacy instead of mere force.)

Definitions of Liberty
● “Liberty is the freedom of individual to express, without external hindrances, his
personality.” -G.D.H Cole (negative aspect)
● According to Seely “Liberty is the absence of restraint” or “the opposite of over
government”.(negative aspect)
 ● “ By Liberty I mean the eager maintenance of that atmosphere in which men
have the opportunities to be their best-selves. Liberty, therefore, is the product of
rights … without rights there cannot be liberty because without rights men are the
subjects of law unrelated to the needs of personality. Liberty, therefore, is a
positive thing. It does not merely mean the absence of restraints. ”- Laski(positive
aspect)

Kinds of liberty
● Civil liberty : civil liberty refers to liberty enjoyed by man in society.civil liberty is
the personal liberty of individuals.
● Gettel states “civil liberty consists of the rights and privileges which the state
creates and protects for its subjects”.
● According to barker, civil liberty consist of three things:
1. Physical freedom which includes freedom of movement
2. Intellectual freedom which includes freedom of thought , expression and
belief , and,
3. Practical freedom which means freedom of choice in daily life.
● Political liberty: political liberty means the power of the individual to be active in
the affairs of the state. A man enjoys civil liberties in the capacity of an individual
whereas he enjoys political liberty in the capacity of a citizen.political liberty
consist of the following rights
1. The right of citizens to vote and elect their representatives (but all citizens
do not enjoy the right to vote, political expediency demands that some
portion of the population of the state be denied this right. In general
aliens,lunatics, children and in some countries women ,generally islamics
are excluded from the right to vote.)
2. The right to be elected by standing in election
3. The right to hold any public office, provided the citizen possesses the
requisite qualifications as prescribed by laws of state.
4. The right to information and the right to criticize the government.
● Laski holds that political liberty to be real, requires two things
Education of the people and
Supply of honest and straightforward news
● Economic liberty : means that everyone has a right to earn his livelihood.
● According to Laski , economic liberty means “ security and the opportunity to find
reasonable significance in earning one's daily bread”. Economic liberty is the
freedom from want and fear, hunger and starvation, unemployment and
insufficiency.
● It is capable of conflicting interpretations by conflicting parties (employer &
worker, trade & consumer).one party interprets economic liberty as the freedom
 to secure maximum profit whereas other would insist on reasonable terms, price
and quantity.
Negative and Positive Liberty
● Negative liberty and positive liberty are not opposed to each other. In fact they
are complementary , they are two sides of the same coin.
● Liberal writers use the terms 'liberty' and 'freedom' synonymously. For them,
liberty or freedom is the supreme value which must be the guiding principle of all
public policy.
● Positive aspect is the one in which liberty means the provision of opportunities for
the realization of one's own personality , and the negative aspect is the one in
which liberty means absence of restraint.
● According to definitions of the negative aspect of liberty, people are really free
and independent only when there is no restraint or hindrance. Individualism
views liberty as the power to do anything that does not injure others.it maintains
that state is an evil and devil which kills the initiative, drive and rights of people.it
concludes that the government which governs the least is the best. People
develop and prosper only when the state does not interfere in their activities. This
is called negative concept or aspect of liberty.
● Positive liberty definitions argue that mere absence of restraint is not enough.
Positively the state should provide opportunities,should educate and encourage,
should work for overall development of an individual.the state should not remain
as a passive spectator but as an active participator. It refers to opportunities for
developing ones nature of human existence as to realize human potentials.
● The negative aspect expects the state to keep itself away from certain areas of
human life whereas positive aspect expects the state to take initiative in
protecting the interests of those who are underprivileged, the intervention of state
is seen to be necessary.
Negative concept
● Negative concept of liberty flourished when individuals were struggling to be free
from the unnecessary restraints of arbitrary government and when individual
choices determined the allocation of resources.
● The main political axiom of the negative liberty doctrine was that 'everyone
knows his own interest best' and that the state should not decide his ends and
Purposes’. Freedom of contract was also recognised as an essential requirement
of liberty.
● The idea of negative liberty that law must enforce all contracts since each
individual was the best judge of his own interest, and he used his judgment
before entering into any contract led to the contract of laissez-faire(freedom from
govt interference in economic affairs)
 ● The state was viewed as a negative state, a necessary evil, which was required
not to interfere with the natural liberty of men, but only to maintain their liberty by
protecting their person and property from the onslaught of other individuals
● Freedom of speech and freedom of worship etc. are related to the question of
freedom to do what symbolize negative aspect of liberty. They imply a negative
role of the state, that is not to restrict the individual in pursuing his self-appointed
goals.
Positive concept
● John Stuart Mill introduced the concept of positive liberty. Mill started with
defense of laissez faire individualism,he realized that working classes were
deprived of their due share and he sought to discover an area where state
intervention could be justified.he was contemplating a positive role for the state in
securing social welfare even if it implied curbing the liberty of the individual to
some extent.
● The freedoms, such as freedom from fear and freedom from want, etc. are
related to the question of freedom from what symbolize the positive aspect of
liberty. They call for a positive role of the state.
Views of berlin
● Isaiah Berlin, in his Two Concepts of Liberty (1958), sought to give a new turn to
the distinction between negative liberty and positive liberty.
● According to Berlin, negative liberty of an individual consists in not being
prevented from attaining his goal by other human beings.
● On the other hand, positive liberty treats individual as his own master.In both
cases liberty implies an absence of restraint
● In Berlin’s words, we use the negative concept of liberty in attempting to answer
the question “What is the area within which the subject- a person or group of
persons - is or should be left to do or be what he is able to do or be, without
interference by other persons?”
● Whereas we use the positive concept in attempting to answer the question
“What, or who, is the source of control or interference that can determine
someone to do, or be, this rather than that?”
● The concept of positive liberty proceeds with the idea that each self has a higher
self and a lower self.
● The higher self, the rational self, should attain mastery over the lower self for an
individual or a people to be liberated in the understanding of positive liberty.
● As Berlin (1969) states, ‘The positive sense of the word ‘liberty’ derives from the
wish on the part of the individual to be his own master
● The term ‘negative’ in negative liberty indicate injunctions that prohibit acts that
restrict freedom.
 ● Berlin states, ‘If I am prevented by others from doing what I could otherwise do, I
am to that degree unfree
● Berlin, however, makes it clear that incapacity to attain a goal is not unfreedom.
As he states, ‘only restrictions imposed by other people affect my freedom’.
● Negative liberty rests on two main axioms—
● Each one knows one’s own interest best. This is based on the assumption of the
individual as a rational agent with a capacity to deliberate and make an informed
choice
● The state has a limited role to play. This follows from the earlier axiom: with the
individual agency foregrounded, the state cannot decide ends and purposes for
the individual. For Berlin (1969), negative liberty as freedom is the opportunity to
act, not action itself.
RIGHTS

● Rights are rightly called social claims which help individuals attain their best
selves and help them develop their personalities
● 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; they are exercised by them so as to enable them to attain the full
development of their personalities.
● Rights are social claims of the individuals eventually recognised and lawfully
maintained.
● Society gives us rights and the state protects them
● Rights have two faces, depending on whether they are viewed from the
perspective of the holder of the right or from those with whom the right-holder is
interacting.
● From the standpoint of the right-holder, a right is permission to act, an entitlement
to act, to exist. To enjoy, to demand’.
● But from the standpoint of the right-observers, the right usually imposes a
correlative duty or obligation.
● This duty can be either negative (to refrain from interfering with the right-holder’s
exercise of the right) or positive (to assist in the successful exercise of the right)
● Different definitions of rights by scholars touch partial aspect of what rights are.
Some of the definition of rights by Scholars are-
● Jefferson’s declaration that the men are endowed by their creator with certain
inalienable rights was one which indicated that men have rights because they
are, by nature, human beings
● Holland defines rights as “one man’s capacity of influencing the act of others, not
by his own strength but by the strength of the society”
 ● Bosanquet says: “A right is a claim recognized by society and enforced by the
state”.
● According to Laski, “Rights are those conditions of social life without which no
man can seek, in general, to be himself at his best.”
● A working definition of rights should involve certain aspects.
● Among these, the social claim aspect is one which means that rights originate in
the society and, therefore, there are no rights prior to the society, above society
and against society
● Another aspect of rights is ‘the development of personality’ aspect which means
that rights belong to the individual and they are an important ingredient which
help promote one’s personality.
● This aspect includes the individual’s right to oppose the government if the latter’s
action is contrary to the individual’s personality
● The definition of rights, furthermore, must include the state’s role in the
framework of rights.
● This aspect lays emphasis on the fact that the state does not grant rights, it only
maintains them.
● Laski said that a state is known by the rights it maintains.

Concept of Human Right

● Human rights are those rights to which an individual is entitled by virtue of his
status as a human being
● Human rights are international moral and legal norms to protect people from
political, legal and social abuses.
● The main source of the contemporary conception of human rights is the
Universal Declaration of Human Rights (1948)
● The universal declaration includes a list of rights which can be grouped in to six
families of right
● Security Rights that protect people against crimes such as murder, massacre,
torture and rape
● Rights to Liberty protect freedom in areas such as belief, expression, association,
assembly and movement
● Political Rights that protect the liberty to participate in politics through actions
such as communicating, assembling, protesting, voting and serving in public
office.
● Due process Rights protect against abuses of the legal system such as
imprisonment without trial, secret trials and excessive punishments
● Rights to Equality that guarantee equal citizenship, equality before the law and
non-discrimination and
 ● Welfare Rights (or ‘economic and social rights’) that require the provision of
education to all children and protections against severe poverty and starvation.
● Apart from the Universal Declaration of Human Rights, leading nations of the
world have expressed their resolve to respect human rights through several
international compacts. Some of these includes

European Convention on Human Rights (1950),

International Covenant on Civil and Political Rights (1966),
International Covenant on Economic, Social and Cultural Rights (1966),
American Convention on Human Rights (1969),
Helsinki Accords (1975) and
African Charter on Peoples' and Human Rights (1981)
Kinds of rights
● Negative and Positive Rights
● Negative rights are rights that entail non-interference from the society at large.
For example, the right to liberty, life, property, etc.
● The right to life prevents others from killing me but it does not obligate them to do
anything positive to assist me in living my life to the full or to live happily.
● Positive rights are rights that impose obligations on other people or the state to
do something for a fuller enjoyment of our rights. For example, the right to health,
basic subsistence, etc. requires positive interference to do something.
● Positive rights entail positive obligations on the part of the right-observer to do
something to assist in the right-holder’s exercise of the right.
● Civil and Political Rights
● Civil rights are the basic legal rights a person must possess in order to have
secure the status of equal citizenship.
● Until the middle of the 20th century, civil rights were usually distinguished from
‘political rights’.
● The civil rights included the rights to own property, the rights to make and enforce
contracts, the right to legal recourse, the right to one’s religion, freedom of
speech and of the press
● But they did not include the right to hold public office, vote, or to testify in court.
These were political rights, reserved for adult males.
● The claims for which the American civil rights movement in the 1950s and 1960s
initially fought belong to the first generation of civil rights claims
● However many activist and thinkers held that to realise free and equal citizenship
other rights such as the rights to food, shelter, medical care and employment
should also include in civil right
 ● The second generation (19th century) of economic ‘welfare rights’, helped to
ensure that the political, economic and legal rights belonging to the first
generation could be made effective in protecting the vital interests of citizens
● The third generation of right claims (20th century) are ‘rights of cultural
membership’.
● These include language rights for members of cultural minorities, and the rights
of indigenous peoples to preserve their cultural institutions and practices, and to
exercise some measure of political autonomy
● Legal Right
● Legal rights are those rights which are recognised by the legal system of a state
which include civil, political and economic rights
● Most of the state have their own bill of rights or constitution which recognise a set
of right for its people
● Legal rights expect the state to act in certain ways. Often it ask state to either to
refrain from certain actions or to do certain actions in order to protect the rights of
people

Theories of rights

● There are different theories which postulate the origin and the nature of rights.
● Theories on the origin of rights
1. The Theory of Natural Rights
● The theory of natural rights where popular during the 18th and 19th century
● This theory treat right as something emanate from the nature of man
● This theory was broadly developed on two important bases: the contractual basis
and the teleological basis.
● The theory of natural rights on the basis of contract has been advocated mainly
by Thomas Hobbes, John Locke and Rousseau
● natural rights possessed by men in the state of nature and that these rights were
attributed to individuals as if they were the essential properties of men as men.
● The contractualists, therefore, declared that the rights are inalienable,
imprescriptible and indefeasible
● Teleology signifies the view that any developments are due to the purpose or
design that is served by them
● The teleological view of rights, therefore, seeks to relate the rights of man with
the purpose of human life.
● Tom Paine (1737-1809) in his Rights of Man (1791) enunciated the theory of
natural rights on teleological basis. He rejected the social contract theory and
held that every generation should be free to think and act on it
● He hold on to the view that rights to 'liberty, property, security and resistance of
oppression’, are inherent rights of humans. Thus they are natural rights
● T.H. Green (1836-82) also sought to build his theory of moral rights on the
teleological basis
● For green the origin of right is in the moral character of man, which reflect in the
moral consciousness of community. So rights belong to the moral capacity of
individual than the force of state
● The natural right theory even though had historical significance, were criticised
for its ambiguous nature, for serving the interest of merchant class, and it is
based on false assumptions that we can have rights and duties independently of
society.
● It is because of these limitations instead of 'natural rights’ the concept of ‘human
rights’ are now invoked for building up a rational system of rights in contemporary
society.
2. Theory of Legal Rights

● The theory of legal rights holds that all rights of man depend on the state for their
existence
● no rights are absolute, nor are any rights inherent in the nature of man as such.
Rights are relative to the law of the land; hence they vary with time and space.
● the advocates of the theory are the Bentham, Hegel and Austin
● Jeremy Bentham in his Principles of Legislation advocate the theory of legal
rights
● The theory of legal rights was advanced with a focus on political reality and to
repudiate the imaginative character of natural rights theory
● Legalist theories are criticized for its absolute nature of state with regard to right
3. The Historical Theory of Rights
● The historical theory of rights, also called prescriptive theory
● Historical theory of rights holds that rights are the product of a long historical
process.
● They differ from state to state and from time to time because of the different
levels of historical development of society
● This theory originated in eighteenth century conservative political thought
● Edmund Burke the greatest champion of historical theory of rights, criticized the
French Revolution (1789) for it was provoked by a conception of abstract rights
of man—liberty, equality, fraternity.
● On the contrary, he glorified the English Revolution (1688) which sought to
reassert the customary rights of Englishmen
● The historical theory of rights suffers from its own limitations.
● It cannot be admitted that all our customs result in rights
 4. The Social Welfare Theory of Rights
● Social-welfare theory of rights postulates that rights are, in essence, conditions of
social welfare.
● The state should recognize only such rights that are designed to promote social
welfare.
● The advocate of the theories includes Bentham, Roscoe Pound and Zechariah
Chafee
● Bentham, postulated the 'greatest happiness of the greatest number' as the sole
criterion of legislation and recognition of rights.
● Chafee holds that law, custom, natural rights, etc. should all yield to what is
socially useful or socially expedient.
● Rights should be determined by the 'balance of interests' under the prevailing
social conditions.
● The social welfare theory of rights is also not without its faults. It dwells on the
factor of social welfare, a term too vague to be precise.
● The Benthamite formula ‘greatest good of the greatest number’ is different to
different people
● The theory turns out to be the legal theory of rights if, in the end, the state is to
decide what constitutes ‘social welfare’
Theories on the Nature of Rights
Will or Choice Theory
● The will or choice theory views the purpose of the law as being to grant the
widest possible means of self-expression to the individual
● The theory identifies the right-bearer by virtue of the power that he has over the
duty in question.
● He can waive it, extinguish it, enforce it, or leave it unenforceable; what he does
is his choice.
● Hart, the main contemporary exponent of this theory, says: ‘Individual discretion
is the single most distinctive feature of the concept of rights’
● The theory not recognize corresponding duties

Interest or Benefit Theory

● The theory places the emphasis on interests or benefits of the person who holds
the right than their choice
● This theory first found in the writings of Bentham. The modern exponents include
Mac Cormick, and Raz.
● The interest or benefit theory meets all situations, regardless of whether the right
holder is or is not the person who has a choice as to whether steps should be
taken to enforce the right.
DUTIES
● The word duty has derived from the word due
● Duty in the non-legal sense may be defined as the moral obligation to do or omit
to do something.
● A man is said to have a duty in any matter when he is under an obligation to do
or not do something
● Every individual have certain responsibilities towards self, others
and state these can be identified as the duties of an individual

● A legal duty is a legal obligation. A man is said to have a duty in any matter when
he is under a legal obligation to do or not to do something
● Duty is the predicament of a person whose acts are controlled by the State in
respect of a right vested in another. It is thus the correlative of right

CLASSIFICATION OF DUTIES

1. Positive and Negative Duties

● When the law obliges us to do an act the duty is called positive, If A owes a sum
of money to B, the latter is under a duty to pay the sum when due. This is a
positive duty. In positive duties performance extinguishes both duty and right.
● when the law obliges us to forbear from doing an act, the duty is called negative
● If A has a right to a land, there is a corresponding duty on persons generally not
to interfere with A’s exclusive use of the land. Such a duty is a negative duty and
is extinguished only if the right itself is extinguished.
2. Primary and Secondary Duties
● Primary duties are those which exist independently of any other duty. e.g. a duty
to forbear from causing personal injury to another.
● A secondary duty is one which has no independent existence but exists only for
the enforcement of other duties, e.g., the duty to pay a man damages for the
injury already done to his person. It is also called a remedial or sanctioning duty
3. Relative and Absolute Duties
● Relative duties are those to which there is a corresponding right in some person
or definite body of persons
● According to Salmond all duties are relative and there can be no absolute duties
for there must be a right in another when one is under a duty
● Absolute duties are those which have no corresponding or correlative rights
● According to Austin, while every right is relative and has a correlative duty but
some duties are absolute and do not correlate with any corresponding right
● Austin mentions four classes of absolute duties:
● (a) Self-regarding duties, e.g., duty not to commit suicide or become intoxicated.
 ● (b) A duty to indeterminate persons or to the public, e.g., duty not to commit a
nuisance.
● (c) A duty to one not a human being, e.g., duty towards God or the lower
animals.
● (d) Duty to the Sovereign or State
4. Moral Legal and Fundamental Duties
● Moral duties are based on the accepted moral assumptions of society
● To perform or not to preform depends upon the will of the individual
● Legal duties are the duties laid down in the law of the state and are enforceable
through the court of law are legal duties
● Fundamental duties are essentials for the harmonious existence of individuals.
● The duties enshrined in the constitution of the nations are also known as
fundamental duties
● Most of the nations doesn`t have a list of fundamental duties due to the notion of
fundamental rights have inherent duties attached to it
● Russia, India, China are examples of nations having fundamental duties laid
down in the constitution

Rights and Duties Correlation

● It is generally held that right and duties are correlative as every rights
corresponds a duty or obligation.
● This perspective is evident when analysing right based on the negative and
positive aspects of rights which uphold the relation between right observer and
right holder
● The correlation of rights and duties are a question of contestation between
absolute theorist and relative theorist
● According to relativist like Salmond there can be no right without a corresponding
duty or duty without a corresponding right.
● According to his view, every duty must be a duty towards some person or
persons in whom therefore a correlative right is vested and vice versa
● Every right or duty involves a bond of legal obligation, by which two or more
persons are bound together
● According to absolutist like Austin there are duties which doesn't have any
corresponding rights tagged with it
● State is the creator of rights and can change its according to its will and the
obligation towards state is absolute
● Austin doesn`t recognize the duty of state towards the individuals
● Leon Duguit observed that law consists solely of duties without corresponding
rights
● He says rights mean nothing. Man is a social animal and has many social
relationship and this relations are never rights but always duties.
● It is a social law of social solidarity (mutual interdependence) which alone
satisfies individual needs through exchange and division of labour on the basis of
which, each perform their mutual duties in society.
● Duguit like Auguste Comte says that the only right which any man can possess is
the right always to do his duty
● Regarding the relationship between right and duties Gandhi held that one must
pay attention to doing their duties and right they will automatically get
● According to Laski the relation of right and duties can be seen as;“my right
Implies your duty”, “my right Implies my duty to admit similar right of yours”, “I
shall exercise my right to promote social goods” and “Since state guarantee my
right I have the duty to support the state”
● Rights and duties go together
● My rights are others duty
● My right is my duty also
● Right should be used for social good
● Duty towards the state