ABSTRACT
It is often assumed – tacitly or otherwise – that the modern problem of rights originated in a split between the ‘rights of man’ and ‘of citizen’. Since 1789, we often hear, two regimes of rights have struggled for hegemony. The first regime constitutes rights as inalienable and allocates them to individuals by virtue of being human. Whether it derives its justification from the tradition of ‘natural law’ or ‘human rights’ the emphasis is that rights such as the right to life, liberty and security of person (art. 3) and to social security (arts. 22 and 25) belong to all humans by virtue of their being human (United Nations 1948). The second regime constitutes rights as membership in a state and deriving protection and security from that membership. These rights are civil in the sense that they arise from and give expression to the constitutional authority of the state and its people. These two regimes conflict, we are told, because each identifies a different source from which to draw its force. This is also where the problem becomes more vexed. If the state is the source of authority and legitimacy that produces the force of law protecting the rights of the citizen, then what is the source of authority and legitimacy for the rights of man as human? There is, of course, none and that is why the idea of ‘natural rights’ or ‘human rights’ is nonsense. This is what Jeremy Bentham said famously: ‘Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, – nonsense upon stilts’ (Bentham 1793). But it was Edmund Burke who made this argument most forcefully and as famously by saying that he would prefer the rights of an Englishman to the rights of man: ‘In the famous law of the 3rd of Charles I, called the Petition of Right, the parliament says to the king, “Your subjects have inherited this freedom,” claiming their franchises not on abstract principles “as the rights of men,” but as the rights of Englishmen, and as a patrimony derived from their forefathers’ (Burke 2009: para. 53).
