JURISPRUDENCE

CAT- IV

THE MODERN CONCEPTION OF RIGHT AND ITS MARXIST

CRITIQUE

Submitted By, Submitted to,

Shivani Kapoor Nimesh Das Guru,

Roll No.288 Assistant Professor

Sem- VIII, Sec- A Jurisprudence

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

2017

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 INTRODUCTION- Bhikhu Parekh in his article basically opens the domain to analysis of a right based
society that has emerged off late since from the 17th century where the entire life of the human beings is
determined in terms of rights. He delves into two aspects in the article- firstly, the modern conception of
right, where unlike the previous period; all human relations are conceptualized in terms of rights and
secondly, the major criticism of this modern conception of rights especially by Marxist. He initiates the
discussion by tracing the evolution of this new right system. The system started from Rome where the
term Jus was used to denote right, law and justice together. Right consisted in enjoying what is right and
justice secured man his right by giving him what is right. This was first of its kind unlike in the modern
societies were men did not conceptualize their lives with rights. They enjoyed all liberties of a free society
without any feeling of being self conscious about them. But thereafter man was given rights not in their
individual capacity but as a member of the community to aid the communities realize its ends. However
this language of right was restricted by custom and traditions. Feudal society was dominated by the
system of duties. Rights and duties were derived by entering into membership of specific groups by way
of quasi contractual relationship where each party was expected to act in the contracted manner.

SUBJECT OF RIGHT- The first change in the 17th century was in the subject of right. Earlier the
communities, groups, families etc were subject of rights unlike the modern times where they have
derivative rights reducible to their members. This presses upon the need to delve into the theory of
individuation which is a matter of social convention and differs with the societal context. In the ancient
society, man was believed to be an integral part of nature and man along with his political rights made an
individual. Subsequently middle age considered man to be inseparable to his tools which constituted his
inorganic body and were as important as his hand and feet. Similarly, Hindus considered man to be
inalienable from his caste whereas the Chinese considered man to be inalienable from his family-
ancestors and descendants. But since the 17th century, the definition of man has been seriously curtailed.
Individual merely constitutes of a biological organism embodied in the body- limits of the body being
limits of the self. The centre of an individual lies within himself in his internal world in contrast to the
external world. The human body has been given moral and ontological significance. Rights and liberty
were defined in its terms. Violence was infliction of physical harm nothing to do with physic or morality.
Restriction physically was a moral problem whereas no heed was paid to actual restrictions on ideas,
emotions and beliefs.

OBJECT OF RIGHT- The modern world has evolved as a material world with man as its sovereign master
to use or discard; unlike the earlier conception of an autonomous world. The radical shift was a change in the
concept of property. Earlier there existed a right in property where man could own property for revenue, there
being restrictions on its alienation. Presently, there exists a right to property along with a right to dispose it

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off. It gives an individual absolute and exclusive right to own, use and alienate. Private ownership of land has
developed in contrast to community land. Not only this, certain powers and capacities which a man possessed
and where somehow separate from him such that he could survive even if they are done away with; were
alienated and others got a right over them. This was only made plausible by defining individual in the barest
possible means classifying only a very few things as essential alienation of which may be considered as
alienation of humanity. These are capacities of reason and will which he needs to exercise irrespective of any
other thing. Man is related to his bodily and mental activities only as his properties, they being in his
possession being alienable at will. With this change, the concept of rights also changed. Right to property
derived a new connotation to mean right to acquire and defend it against others interference unlike the earlier
conception of right to own certain amount of property. Right to life was narrowed down. The introduction of
economic rights added a new dimension in addition to protection for enjoyment. It emphasized on the concept
of well-being and sustenance; driving the Government to initiate positive action as well.

CONCEPT OF RIGHT- Following are some of the features of the modern concept of rights- Firstly- right is
a claim- a right can be claimed being respected and fulfilled irrespective of anything. Secondly- claim is a
title. Claim is not frivolous but ensured by a legal backing in form of the title deed. Thirdly- title is bestowed
by a legitimate authority. If there is a question on the validity of the claim a specific law by the appropriate
authority maybe brought forward. The claim under customs and traditions is unenforceable unless they are
bestowed with a legal status. Fourthly- right has minimum restraints. There is no restriction on the
enforcement of right provided the due procedure is followed. Fifthly- rights are exclusive in nature. Individual
can not only exercise the right as he wants and but also restrict the access of the same to others. Sixthly-right
imposes a moral burden being a source of benefit to the bearer and a source of burdens and disabilities to
others for which an extra cost has to be borne. Moreover the burden put forward by those rights enjoyed by all
are easier than those by restricted few. Eg. The burden imposed by restriction on right to life. Though all men
possess equal rights but in practicality it’s restricted to a few. This is because the resources to implement
these rights are unequally distributed and hence all cannot afford its due implementation. Seventhly- right is
legally enforceable. The law ensures effective retribution and reprimand to those who threaten others rights.
Lastly, it is a formal title conferred irrespective of the ability to exercise. It promises opportunities by way of
rights in spite of the fact that it is improbable for him to exercise the same. Eg. Right to life given to a dying
man etc.

IMPORTANCE OF RIGHTS- Modern society is embarked by a shift from organic solidarity to material
solidarity with common sentiments and traditional and customary ties withering away. Man has evolved as an
individual being isolated from others with no ties and duties except for what he has himself chosen; each
being concerned with protection of his own interest being transgressed. State is obligatory being the

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centralized authority and sole legitimate source of binding laws having a monopoly of violence to ensure its
implementation. Rights are corollary to duties. A respect to other’s right is with regard to the duty to do so
which is followed either in fear of punishment or it being internalized. The idea that every duty presupposes a
right has so much dawned that moral emotions has withered away and everything is spoken in terms of rights.
The concept of human rights or moral rights has come up for defining in the language of rights with disregard
to feelings of solidarity, charity etc as he calls it right based moral ethos. Earlier restricted to civil life, the
language of rights has also penetrated into the family life- children have a right to parental love and
maintenance with parents having corresponding duties. Language of rights has gained such predominance that
nothing attains value unless defined in these terms including the basic needs of man – a right of them being
satisfied. Similarly all desirable and commendable actions are reduced to duties entailed by a corresponding
right including duty to animals etc. There is an ever continuing search of the source of such rights.

MARXIST CRITIQUE- Marx traced the modern conception of right as nothing more than an “ideological
rationalization of capitalist society.” Capitalism regard man as both subject- a self defining human being and
an object- as a commodity. Man is an object because he is alienable from his produce- his skill, services and
power (as regarded by the capitalists to attain the surplus value of production). On the contrariety, he is a
subject because capitalism as a shift from feudalism embarks upon man being free having equal rights. This
highlights the dualistic theory of man whereby his power is a saleable commodity and his abstract personality
is inviolable and sacred. A human being isn’t bestowed with rights. Abstract rights are bestowed on abstract
juristic person, i.e. equality of rights is a paradigm- - unequal resources, powers and capabilities putting an
embargo on the same. Besides this, Marx believes that modern concept of rights puts fetters on human
interdependence and isolates men from his fellow men. This is legitimized the bourgeois legal theory of rights
characterized by egoistic pursuit of self interest. It hinders the growth of class consciousness. Personal rights
are evil in disguise. A labor may have such freedom to leave one capitalist and join the other but he continues
to remain within the dominance of “capitalist class”- circumscribed by class slavery. All this is a pursuit of
capitalists to continue to take advantage and exploit labors that are theoretically ‘equal’. Some scholars
believe that these rights are camouflage- a streak to legitimize inequality of rights and encourage class
domination – they merely obscure the harsh reality of class rule by creating an illusion of being free and self
determination. Some believe that the system of rights is an input by bourgeois which has no place in
communist society where there is material abundance. However he believes that these would be essential in
exposing the weakness of bourgeois society resulting in its downfall. Some scholars however have interpreted
that Marx didn’t aim to disregard the conception of right. He merely highlighted the criticism and how the
bourgeois concept of right has been devised for evil motives. He did not mean that rights are illusionary in
nature and thus there being no distinction between liberal democratic state and Fascist state. In fact, the
Marxist’s ideal communist state also needs a set of rights borne by human beings and not by a juristic person