Jurisprudence
Natural Rights versus Legal Rights
At a Glance ▪ Natural rights belong to human beings as such, by nature or reason, before and above any State: pre-political, universal and inalienable. Legal rights are conferred and enforced by a particular legal system and can be changed by it. ▪ Leading voices: Grotius, Hobbes (the right of nature), Locke (life, liberty and estate), Blackstone (absolute rights), Paine (Rights of Man, 1791), Jefferson (life, liberty and the pursuit of happiness). ▪ Bentham, in Anarchical Fallacies: 'Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.' For him, right is the child of law. Burke and Marx attacked from other directions. ▪ After 1945 the idea revived as human rights: UDHR (1948), ICCPR and ICESCR (1966); and in theory through Hart (1955), Nozick and Finnis. ▪ India moved from A.K. Gopalan (1950) and the ADM Jabalpur majority (1976) to Maneka Gandhi (1978) and Puttaswamy (2017); Puttaswamy treated life, liberty and privacy as natural, inalienable rights that the Constitution recognises rather than creates. |
Is the Constitution a mirror or a mint? If it is a mirror, it reflects rights that people already have simply by being human, and a government that suspends them does wrong even if it acts lawfully. If it is a mint, rights exist only because the law stamps them into existence, and what the law gives the law may take away. The natural rights tradition says mirror; legal positivism says mint. This note sets out both positions, the leading thinkers on each side, the modern human rights settlement, and the long Indian journey from Gopalan to Puttaswamy.
1. Natural Rights Defined
Natural rights are rights said to belong to every human being by virtue of human nature or reason, derived from natural law rather than from any State. On the classic account they have three marks. They are pre-political: they exist in the state of nature, before government, and government is instituted to secure them. They are universal: the same for every person everywhere. They are inalienable: they cannot rightly be surrendered or taken away. Because they do not depend on the State, they supply a standard for judging the State, and they have been invoked to justify resistance and revolution.
2. The Leading Voices
The natural rights tradition ▪ Hugo Grotius, De Jure Belli ac Pacis (1625), treated a right as a moral quality of a person and held that natural law would retain its validity even if God did not exist, freeing natural rights from theology. ▪ Thomas Hobbes, Leviathan (1651), defined the right of nature as the liberty each man has to use his own power for the preservation of his own life. Men give up most of it to the sovereign for the sake of peace, but not the right to defend their lives. ▪ John Locke, Two Treatises of Government (1690), held that in the state of nature men have rights to life, liberty and estate (which he gathered under the name property), and that government exists to protect them. A government that invades them forfeits its trust. ▪ William Blackstone, Commentaries on the Laws of England (1765), described the absolute rights of individuals as the rights of personal security, personal liberty and private property. ▪ Thomas Paine, Rights of Man (1791), defended the French Revolution against Burke and argued that natural rights are the foundation of all civil rights. ▪ Thomas Jefferson, in the Declaration of Independence (1776), declared the unalienable rights of life, liberty and the pursuit of happiness. The French Declaration of the Rights of Man and of the Citizen (1789) spoke of the natural, inalienable and sacred rights of man. |
Rousseau is sometimes listed with these writers, but that is doubtful. In The Social Contract (1762), each associate makes a total alienation of himself and all his rights to the community, under the direction of the general will. Whatever rights citizens then hold, they hold as members of the political community. That is close to the opposite of the Lockean claim that natural rights survive the formation of the State and limit it.
3. Legal Rights Defined
A legal right, in the positivist sense, is an interest recognised and protected by a rule of the legal system in force (Salmond), or a right that exists because another person is bound by law to act or forbear towards the holder (Austin). Legal rights exist only where a legal system confers them; they vary from State to State and from time to time; they can be created, altered or abolished by the lawmaker; and they are enforced through the courts. The separation thesis of positivism does not deny that there may be moral reasons for having certain legal rights. It insists only that whether a legal right exists is one question and whether it ought to exist is another (see Notes 54 and 55).
4. The Critics of Natural Rights
Jeremy Bentham delivered the most famous attack in Anarchical Fallacies, written against the French Declaration of Rights: 'Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.' His argument was that right is the child of law: real rights come from real laws, while imaginary laws of nature produce only imaginary rights. Declaring rights that no law creates confuses what the law is with what one wishes it were, and invites anarchy by teaching people that any law they dislike is void.
Edmund Burke, in Reflections on the Revolution in France (1790), attacked from the conservative side. He preferred the inherited rights of Englishmen to abstract metaphysical rights of man, which he thought dangerous because they ignored circumstance and tradition. Karl Marx, in On the Jewish Question (1843), attacked from the left: the rights of man were the rights of egoistic man, separated from the community, protecting bourgeois society rather than achieving human emancipation. Critics also point to the problem of content: natural rights theorists have never agreed which rights are natural or how to resolve conflicts between them.
Classic Definitions ▪ Bentham (Anarchical Fallacies): 'Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts.' ▪ Locke (Two Treatises of Government, 1690): men in the state of nature have natural rights to life, liberty and estate, and government is instituted to preserve them (paraphrase). ▪ Jefferson (Declaration of Independence, 1776): all men are endowed with certain unalienable rights, among them life, liberty and the pursuit of happiness (paraphrase). ▪ Nozick (Anarchy, State, and Utopia, 1974): 'Individuals have rights, and there are things no person or group may do to them (without violating their rights).' |
5. The Twentieth-Century Revival
After the atrocities of the Second World War, the claim that some rights stand above any State's law revived in a new vocabulary: human rights. The Universal Declaration of Human Rights (1948) opened by declaring that all human beings are born free and equal in dignity and rights. It was followed by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (both 1966), to which India acceded in 1979. Human rights are, in effect, natural rights given positive form.
In legal philosophy, Hart's 'Are There Any Natural Rights?' (1955) argued that if there are any moral rights at all, there is at least one natural right, the equal right of all men to be free. Robert Nozick, in Anarchy, State, and Utopia (1974), built a libertarian theory on Lockean rights that act as side constraints on what anyone, including the State, may do. John Finnis, in Natural Law and Natural Rights (1980), restated natural law in terms of basic human goods and requirements of practical reasonableness, and treated rights as a way of expressing what justice requires. Dworkin's rights as trumps (Note 19) belongs to the same revival.
6. The Two Compared
Basis | Natural rights | Legal rights |
|---|---|---|
Source | Human nature, reason, natural law | The positive law of a State |
Existence | Prior to and independent of the State | Only where a legal system confers them |
Scope | Universal: the same for all humanity | Local: vary by system and over time |
Alienability | Inalienable; cannot rightly be taken away | Can be created, altered or repealed |
Enforcement | Moral appeal, resistance; today, human rights law | Courts and the coercive power of the State |
Leading voices | Grotius, Hobbes, Locke, Blackstone, Paine, Jefferson | Bentham, Austin, Kelsen, Hart (as positivists) |
Constitution as | A mirror that recognises rights | A mint that creates rights |
7. The Indian Perspective: From Gopalan to Puttaswamy
The Indian Supreme Court has moved between the two views, and the movement is one of the great themes of Indian jurisprudence.
A.K. Gopalan v State of Madras Supreme Court of India, 1950 The majority read 'procedure established by law' in Art. 21 as procedure laid down by a law enacted by the State, and declined to import the American concept of due process, which the framers had deliberately rejected. Each fundamental right was read in isolation. This is a positivist reading: the right to life and liberty is what the enacted law makes it. |
Golak Nath v State of Punjab Supreme Court of India, 1967 (11 judges, 6:5) Holding that Parliament could not amend the Constitution so as to take away fundamental rights, Subba Rao CJ described fundamental rights as the modern name for what have traditionally been known as natural rights: primordial rights necessary for the development of human personality (paraphrase). |
ADM Jabalpur v Shivkant Shukla Supreme Court of India, 1976 (5 judges, 4:1) During the Emergency the majority held that, while the right to move the courts for enforcement of Art. 21 was suspended, a detenu could not challenge his detention even on the ground that it was illegal. Art. 21 was treated as the sole repository of the right to life and liberty. Khanna J, dissenting, held that the right to life and personal liberty is not the creation of the Constitution; it existed before it, and the State cannot deprive anyone of it without the authority of law, even during an Emergency. |
Maneka Gandhi v Union of India Supreme Court of India, 1978 The Court held that the procedure established by law under Art. 21 must be fair, just and reasonable, not arbitrary, fanciful or oppressive, and that Arts. 14, 19 and 21 must be read together. In substance this brought back the protection that Gopalan had refused. |
K.S. Puttaswamy v Union of India Supreme Court of India, 2017 (9 judges) Recognising privacy as a fundamental right, the Court held that life and personal liberty are inalienable rights inherent in human existence, which the Constitution recognises rather than creates. It described privacy as a natural right. The Court held the ADM Jabalpur majority to be seriously flawed and it now stands overruled; Khanna J's dissent was vindicated. |
The Protection of Human Rights Act, 1993 gives the modern synthesis a statutory form. Section 2(1)(d) defines human rights as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. The definition captures the whole story: rights once claimed as natural, now written into the Constitution and international law, and made enforceable as legal rights.
8. Evaluation
The natural rights tradition explains why slavery, torture and arbitrary detention remain wrongs whatever the local law says, but its content is uncertain and rests on contested claims about human nature. Bentham's positivism supplies clarity about which rights a court will enforce, but ADM Jabalpur showed how a purely positivist reading can leave liberty at the mercy of an Emergency. Modern constitutionalism compromises: natural rights are entrenched as legal rights, shielded by the basic structure and enforced by courts. The mirror has been built into the mint.
Memory Aid ▪ Analogy: mirror or mint. Natural rights theory says the Constitution is a mirror that reflects rights people already have; positivism says it is a mint that creates them. ▪ Mnemonic for the voices: 'Good Heroes Love Brave Patriotic Journeys'. Grotius, Hobbes, Locke, Blackstone, Paine, Jefferson. ▪ Three triads, kept apart: Locke = life, liberty, estate. Jefferson = life, liberty, pursuit of happiness. Blackstone = personal security, personal liberty, private property. ▪ Critics: 'B, B, M'. Bentham (nonsense upon stilts), Burke (abstract rights), Marx (egoistic man). |
Exam Corner: Likely Questions ▪ Distinguish natural rights from legal rights. Explain Bentham's criticism of natural rights. ▪ Trace the development of natural rights thinking from Locke to the Universal Declaration of Human Rights. ▪ 'Life and liberty are not the creation of the Constitution.' Discuss with reference to ADM Jabalpur and Puttaswamy. ▪ How far have natural rights been converted into legal rights in India? |
Exam Corner: MCQ Traps ▪ 'Nonsense upon stilts' is from Bentham's Anarchical Fallacies, written against the French Declaration of Rights. ▪ In ADM Jabalpur, Khanna J wrote the dissent, not the majority. ▪ Jefferson's triad is life, liberty and the pursuit of happiness; Locke's is life, liberty and estate. ▪ Rousseau required the total alienation of each person's rights to the general will; he is not a classic natural rights theorist. ▪ Puttaswamy (2017, 9 judges) overruled the ADM Jabalpur majority. |
9. Frequently Asked Questions
Q. What is the difference between natural rights and legal rights?
A. Natural rights are said to belong to every human being by nature or reason, prior to and above the State, universal and inalienable. Legal rights are conferred and enforced by a particular legal system, vary from place to place, and can be created or abolished by law.
Q. Why did Bentham call natural rights nonsense upon stilts?
A. Because for him right is the child of law: real rights come only from real laws. Rights said to come from an imaginary law of nature are imaginary, and declaring them invites people to treat any law they dislike as void. He made the attack in Anarchical Fallacies, against the French Declaration of Rights.
Q. Why is Rousseau not usually counted among natural rights theorists?
A. Because his social contract requires each person to alienate all his rights totally to the community under the general will. Rights are then held as a member of the political community, not as pre-political limits on it, which is the opposite of Locke's view.
Q. Does Indian constitutional law accept natural rights?
A. Increasingly, yes. After the positivist readings in A.K. Gopalan (1950) and the ADM Jabalpur majority (1976), Maneka Gandhi (1978) demanded fair procedure; Puttaswamy (2017) treated life, liberty and privacy as inalienable rights that the Constitution recognises rather than creates, vindicating Khanna J's dissent.
See also: Note 9 (natural law school), Note 54 (positive versus natural law), Note 55 (natural law versus positivism), Note 45 (fundamental rights), Note 77 (legal versus moral rights), Note 28 (rights and duties).
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