The Sources of Rights

A BASIC DIFFERENCE

Having dealt with superficial and simplistic views, we come across a deep-rooted difference between the lawyers. The question is whether right and justice have a real essence of their own which needs to be discovered and identified, or such matters are subject to conditions and agreements, for instance, situations which do not have any real essence and rational basis. On the contrary they are dependent on agreement. In cases where there are supportive and overall agreements it is considered that human wisdom and conscience would realize them. In case where such overall agreements do not exist, there is a need for enacted laws so that peoples right and duties are determined through them.

Such a tendency existed since long amongst the Sophists who believed that right and justice, as well as all other moral and legal matters were subject to public opinion. Their most well known aim is that man is the standard of everything. From the writings related to Plato it appears that the major portion of Socrates discourses with Sophists related to moral and legal subjects.

But this tendency declined with the flourishing of the philosophies of Plato and Aristotle. They could not get any renowned supporter for many a centuries. It was only after the renaissance and particularly during the days of Hume, the famous septic British philosopher that this way of thinking came to surface with fresh prestige and dignity. Gradually the number of people contributing to this philosophy increased. Presently the historical and positivist schools of law, which have attained significant reputation in international legal circles, are more or less, fed through this source.

In reply to those who contribute to this tendency, it may be said that if rights did not have rational and realistic base, the relationship of contradictory and antithetical laws with the welfare and well being of the people should have been uniform, whether people liked these laws or adopted laws other than these. Innumerable experiences in addition to ones reason and wisdom indicate that many of the enacted laws have been to the disadvantage of society. Legislators have realized their mistakes after sometime and resorted to set them right. This is the best witness to the fact that irrespective of people’s inclination and despite lawmakers’ views, real interests and essence do exist which may occasionally be in line with enacted laws and at times opposed to it.

But this summary reply is not sufficient to remove all doubts which arise in this regard. It is necessary that at least the most important of such doubts should be examined and dealt with.