We now discuss the relation between the rights and the political authority or the State. It is said that rights and duties are the products of political authority, and that the rights are the creation of the State. On the other hand, it is asserted by other political writers that rights are not created but recognised by the State and that rights are prior to the State and exist before its recognition. These contradictory views have a long history behind them. They are the result of controversies among political thinkers over the Natural Rights. The Social Contract theorists asserted that man possessed certain rights before the civil society or State came into being. These are his natural rights which he enjoyed in the State of nature.
The critics of the theory of Natural Rights deny the existence of rights in a pre-political condition of human life. They assert that rights in the imaginary State of Nature were mere powers. So there were no rights at all in the pre-political life. Rights came into being only when there was a civil society or State to protect and enforce them. Only those claims or powers of an individual become his rights which the State guarantees to protect and enforce. But the State assumes this guarantee only when it believes that the exercise of these powers or the realisation of such claims will promote the welfare and good of the whole society.
The State creates rights, firstly, for the reason that it represents the consciousness of common interest of all its citizens. Without this common consciousness, rights would remain mere powers. Secondly, the State co-ordinates the conflicting claims of various individuals. It represents the collective interest of the community, which is superior to the interest of one individual. The State recognises only such a claim as a right which embodies the common interest of the whole society. Thirdly, the State creates right by formulating and enforcing them. This is done by means of laws and courts. These are the conditions which ensure rights. It is for this reason that the rights are declared to be the creation of the State. “Rights are prior to the State.”
To say that rights are the creation of the State does not mean that they are its creatures. Some of the critics of the theory of Natural Rights and Social Contract went to the other extreme. They asserted that rights are made by the State alone. This is the opinion of the Idealists also. But such a view cannot provide an adequate political philosophy. It fails to understand the real nature of rights and the purpose for which they are recognised by the State. Rights are those conditions of social life which enable a man to be his best self. Now the idea of the best self or of the common good is not created by the State. On the contrary, the State was created to protect and uphold the common good. Therefore, whether the State recognises or fails to recognise the common good, the rights would remain necessary. The validity of the State is derived from this recognition. The State is known by the rights it maintains. The State exists to safeguard and guarantee the rights. It is in this sense that rights are prior to the State.
Rights are mere claims till they are defined and recognised by the State. State, as the co-ordinating authority in the society, formulates rights and duties in the form of laws. But the citizens will obey laws only when political authority or State has formulated and published them in definite laws. Mere formulation is not enough. The State must uphold an individual’s rights and enforce duties regarding them by means of its coercive authority. It performs this important function by means of the courts and its administrative agencies, e.g., police. It settles disputes regarding rights and duties. It punishes those who do not fulfil their obligations or obstruct others in the enjoyment of their rights.
Rights are the guarantees of the moral development of the individual. They are those necessary social conditions in which alone a man or a woman can realise his or her best self. But the rights are defined, co¬ordinated and maintained by the State. Rights can only be possible in the State, which protects and ensures them by its laws. To accept the view that the individual can have rights against the State means that he can disobey the laws. But this would create anarchy and disorder. Now, if there is anarchy or social disorder, the very conditions, which would enable the individual to develop morally and be his best self, would be destroyed. In other words, to say that an individual can have rights against the State is to destroy the very basis of rights. Hence he cannot have rights against the State.
But we must here make a distinction between the State and the government, especially in a democracy. The government is a machinery of the State. If a government fails in its duty, there is no justification for it to continue. If it does not enable the individuals to develop morally, it can be changed and a new government can be elected in its place. In a democracy, the constitution provides constitutional means, such as elections, etc., to substitute one government by another. The citizens have a right on moral ground to change such a government, which denies them moral conditions of development and progress.