by Kusum Jain
If we try to characterize the politico-socio-cultural spirit of last one and half century in one word, the most appropriate term will be 'rights'. 'Right' has become the most powerful idiom of our contemporary intellectual discourse and many of the influential political theories developed in last one and a half century have focused their attention primarily on this concept. The meaning, essence and the ultimate end of human existence is understood in terms of rights only, and man's relationship with society and his fellow human beings is defined primarily in reference to this notion. In fact, most of the political, social, moral, legal, cultural and even religious institutions of our present day society use 'rights' as the key concept, not only to define but also to 'justify' their existence. And in my view, the root cause of the major problems confronting our contemporary world lies in this right-centric world-view.
This world-view perceives men as "Little Gods" having 'rights' as 'absolute powers' to be used as defense weapons in their war against fellow beings or society as a whole. As a result, individual ego has overpowered the community spirit and humanity has split into factions of races, classes, cultures, genders, groups, professions, religions and ideologies. The unity conferring principles of the whole humanity are lost and man has emerged as an isolated individual having no emotional bondage with the larger reality which we can call ‘NATURE’. This has deprived man of the essential purpose and meaning of life.
A plausible solution to this situation, I believe, can be developed by replacing this right-centric world-view by obligation or duty-centric world-view, a world-view which maintains that 'obligation' and not 'right' is the fundamental notion to understand human reality. One of the most systematically developed examples of such a view can be found in classical Indian tradition which bases itself on the notions of Rina, Yajna and Purushartha. It is not possible to discuss all the aspects of these notions within the scope of a paper. In what follows I will very briefly present only a few basic characteristic features of each of these1.
Unlike most of the traditional Human Right Theories which claim that man is born with certain 'natural', inalienable, universal rights which can be ascribed to him just because he is a human being, this view maintains that man is born with certain Rinas (debts) or obligations and qua man, it is his foremost Dharma (duty) that he discharges these obligations with utmost care and perfection. Unless one does so, one is not considered worthy of being called a human being. In other words, the very essence and meaning of human existence consists in fulfillment of certain obligations - paying off some basic debts he is born with. To do so he may need certain privileges or facilities. He must be provided with these facilities. But he can possess these 'rightfully' , only if he uses them for discharging his obligations.
An elaborate theory of rina (debts) was developed in classical Hindu literature. These rinas were classified into three categories - (a) Deva rina, (b) Pitri rina, and (c) Rishi rina.
(a) Dev rina is our debt towards powers which control nature and its various phenomena and which have endowed us with invaluable gifts of air, water, fire, food, vegetation etc. (b) Pitri rina is our debt to our ancestors, parents and society as a whole for giving us birth and providing conditions for our survival and development by maintaining the institution of family. (c) Rishi rina is our indebtedness towards our teachers, great Seers, sages, discoverers and inventors who have brought our civilization and culture to this stage and have imparted knowledge and wisdom to the whole humanity.
These three rinas are paid off by performing five kinds of Yajnas (sacrifices) namely, (a) Deva Yajna, (b) Pitri Yajna, (c) Rishi Yajna, (d) Bhuta Yajna and (e) Nri Yajna. The term Yajna is sometimes misunderstood to mean simply performance of certain rites in which ablation of various kinds are offered to fire. But performance of this ritual is only a symbolic gesture signifying the duty of every individual to offer a portion of his possessions towards the whole i.e. the Universe. In true sense of the term, Deva Yajna consists in showing our gratitude towards natural phenomena by contributing towards its preservation, maintenance and growth and by abstaining from its unnecessary, excessive exploitation. For this purpose, an elaborate system of do's and don'ts has been prescribed in Hindu scriptures which takes care of every minute detail in this respect, e.g. watering of certain plants every day, having reverence for some rivers and mountains treating them as divine entities etc.
Pitri Yajna is performed by procreation and by contributing towards the maintenance and well being of the family. We can express our gratitude towards our ancestors only by parenting and affectionately nurturing the family lineage passed on to us by them.
Rishi Yajna is performed by imparting knowledge we have acquired from our teachers to the younger generation and by paying our share in the growth and development of our heritage and cultural tradition.
Bhuta Yajna consists in caring for the various species of creatures (visible or invisible) surrounding us in this universe and in having friendly relations with them.
Nri Vajna or Manushya Yajna consists in sharing our possessions with fellow human beings and one of its most popular form is Atithi-Satkar i.e. hospitality even to a stranger. A person who happens to visit us without any previous acquaintance or notice is called an Atithi and every Hindu is supposed to treat him as God and all facilities and services offered to him are regarded as service to God.
The notion of the three rinas and five yajnas is integrally woven into the scheme of four-fold purusharthas - the four basic goals / ends of all human endeavors. The purusharthas recognized by Hindu tradition are :- (1) Artha — the material well being of man obtained through the attainment of wealth and worldly prosperity. (2) Kama — the attainment of pleasures related to the emotional and sensuous aspect of man's being. (3) Dharma — realization of the system of moral norms grounded in the essence of human nature. (4) Moksha attainment of the transcendental state of spiritual liberation. It is redemption not only from all sufferings but also from the limitations of space and time2.
These four purusharthas are hierarchically ordered and Moksha is considered to be the highest amongst them - the ultimate or supreme end of human existence. But from the point of view of society and interpersonal relationships of its members, Dharma is considered to be the central purushartha and is believed to provide the foundation for building a system of obligations and rights.
Dharma: Etymologically, the term 'dharma' is derived from the root 'dhr' meaning to uphold, to sustain, to nourish, to support. In this sense, dharma stands for principle of cosmic order and moral harmony which sustains and supports the universe as one unified orderly whole. It is the law of being by virtue of which a thing is what it is. It is expression of the essential nature of each being and to maintain orderliness and harmony in the universe each being must remain in conformity with its own dharma.
Inanimate objects and non-human creatures naturally follow their own dharma, the law of their nature. But man as the unique possessor of free will is capable of defying it. And therefore, in his case 'dharma' not only stands for "essence of his nature" but also acquires a prescriptive connotation emphasizing its moral and obligatory aspect. In this sense, dharma is conceived as the most fundamental moral norm grounded on the essence of human nature, prescribing duties and obligations accordingly, so that justice, order and righteousness can be maintained in the universe. Thus it is both the principle of 'Reality' as well as 'Ideality'. It is also the commanding purushartha which is supposed to regulate the pursuits of the other two purusharthas i.e. of artha and kama. The Hindu tradition firmly believes that the economic and emotional. aspects of man's being should necessarily be subordinated to the moral aspect and every human activity must be under the control of dharma, the system of supreme moral obligations.
Different aspects of dharma are classified into two broad categories namely, (1) Sadharana Dharma and (2) Svadharma. The latter is further divided into two (a) Varna dharma and (b) Ashrama dharma. Apart from these, the notions of Apad dharma and Yuga dharma are also present in the scriptures.
(1) Sadharana Dharma refers to those universal duties which are obligatory on all human beings irrespective of various differences pertaining to their race, sex, colour, religion, nationality, culture, profession and even physical and mental capacities. These are eternal moral obligations of man qua man and their fulfillment alone distinguishes man from animals. Often referred to as Manav-dharma (human duties) Sadharana dharma includes a list of virtues such as honesty, love, forgiveness, charity, mercy, non-violence, compassion, justice, purity of conduct, self-control, benevolence, simplicity, begetting children and maintenance of dependants. But the essence of Sadharna dharma is generally stated as "refrain from doing unto others what you will not have done unto yourself."
(2) Svadharma literally means 'one's' own dharma (duty) which is essentially correlated with svabhava (one's own specific nature). The inner correlation of svabhava with svadharma is expressed in terms of the two aspects of svadharma, the social and the individual, which are reflected respectively in varna-dharma and the ashram-dharma. The former deals with the duties assigned according to man's class and position in society which is determined by his character (guna) and .function (karma); the latter deals with the duties relevant to different stages of man's life. (a) Varna-dharma classifies human beings into four basic classes on the basis of the dominant trait of their character and psycho-physical make up, and assigns different duties and functions accordingly. The four classes are: Brahmins, the men of learning and knowledge; Ksatriyas, the men of power, action and administration; Vaisyas, the men of trade, commerce, technical ability and skilled craftsmanship; and Sudras, the men of service and labour. This fourfold division of society bears a striking similarity with Plato’s division of society into three classes in Republic.
The class identity in Indian tradition has played a vital role in determining the status of man in social structure. These classes were initially determined on the basis of qualities, functions and psychological make-up of man. But due to some vested interests, mainly of upper classes, and in the absence of any objective mechanism to assign classes, later on birth became the sole criterion for determining the class of a person. This gave rise to the ill-famous caste system in India. In a way, caste system can be called a deformed version of the class-system. But this caste identity plays a very significant role in political and economic structure of even the present day Indian Society.
(b) Ashrama dharma: While varna-dharma emphasizes the social aspect of human life, ashrama-dharma concentrates more specifically on the personal aspect of the individual's development. It represents human life as consisting of four consecutive stages, each of which is associated with specific ends, duties and rights. The term 'ashrama' comes from the root ‘shrama' which means 'to exert energy or to toil'. The four ashramas therefore are supposed to embody four gradual stages of life, each of which involves unique efforts leading towards specific ends and all four of which are ultimately directed towards the realization of moksha. If the varna can be said to emphasize nature, the ashramas stress nurture.
The four ashramas are (a) Brahmcharya, the first stage of life, the period in which body and mind are disciplined and trained under the guidance of learned teachers. (b) Grihstha, the stage of householder where previous learning is utilized in the pursuit of artha (economic desires) and kama (passions and emotive goals) and where all the responsibilities related to the maintenance of the institution of family are to be discharged. (c) Vanprastha, the stage characterized by gradual development of an attitude of non-attachment and indifference towards materialistic desires. After fulfilling all the responsibilities towards the family and other members of the society one gradually starts withdrawing oneself from active social life, though one is supposed to be always available for objective advice and guidance in matters of civic and social life.
(d) Sanyasa, the final stage of a man's life is characteristically marked by universal love and compassion, complete overcoming of ego, strict observance of celibacy, perfect self-control, disinterested service and a complete renouncing of all worldly possessions. Thus the ashramas also advocate a functional division. These four functions in chronological order are preparation, production, service and retirement i.e. the complete renunciation of the worldly desires. Besides these, the notions of apad-dharma and yug-dharma are also present in Hindu tradition. Apad-dharma maintains that in the times of distress and unusual difficulties one must be allowed to deviate from the regular course of dharma. Yug-dharma involves the notion of change according to the requirements of the conditions of a particular age or time period.
Even from this brief sketchy out-line of traditional Hindu social structure it becomes amply clear that in this scheme (1) man is viewed primarily as a social being living in an ordered universe. (2) the true nature of this universe can be understood and explained only through a teleological framework. (3) man is born with some basic obligations towards this universe and every aspect of human activity must be directed to the realization of the ultimate goals of this teleological system. (4) to fulfill his obligations man needs certain privileges, facilities and things necessary to carry out his duties. These privileges and things are referred to as his rights. (5) from each set of dharma (duties) a corresponding set of rights emerges and is justified only as long as it becomes a means to discharge these duties.
According to the above mentioned scheme the rights which flow from the concept of sadharna dharma are as universal and as general in character as are the duties pertaining to this level. As stated earlier, sadharna dharma is the dharma of a man qua man, and therefore the duties prescribed at this level are universally obligatory. The basic duty of this level essentially consists in treating other persons as one's own self and respecting their dignity and freedom in all respects. By performing this duty man necessarily becomes entitled to certain rights, namely the right to life, the right to freedom, the right to equality, the right to self-determination, and the right to property. Despite their universality, the characterization of these rights remains very general at this level and the determination of their modalities is left for the level of Svadharma.
At the level of svadharma, rights are determined according to the varna and ashrama of a person, and therefore they become relatively specific and particularized. They vary according to the specific requirements and duties associated with different varnas and ashramas. Since rights are means towards the fulfillment of duties, if duties vary, the modalities of the corresponding rights also vary, and therefore the form and mode of the same right may differ for the people belonging to different classes and at different stages of life. For example, since the duties of a Brahmin necessarily differ from the duties of a Kshatriya, or a Vaishya, their rights also differ accordingly. A Brahmin, according to the principles of varna-dharma is supposed to lead highly virtuous, self-restrained, priestly life. He was not allowed to engage in money-making activities and was expected to refrain from accumulation of wealth and seeking of political or military power. He must follow detailed restriction of diet (e.g. he was not allowed to eat meat and drink wine), and marriage, (he could marry only within his own varna), and must abstain from lower sensual pleasures. His primary duty consisted in devoting himself exclusively to the search for truth and spiritual wisdom, and he followed a strictly disciplined life by observing certain daily rites.
Performance of these duties endowed Brahmins with some special modalities of the general rights. For example, they were free from state taxation, they could not be given capital punishment, they received lighter punishment for certain offences, and in general, they enjoyed some special political and social immunities.
But these special rights and privileges were balanced by proportionately severe punishments and restrains. For certain offences Brahmins were punished more severely as compared to the members of other varnas. For example, according to Manu Dharma Shastra, a Sudra who steals is to be fined eight times the worth of the stolen goods; a Vaisya sixteen times, a Kshatriya thirty two times, and a Brahmin one hundred twenty eight times.3 Incidentally, this also shows that the classical Indian legal system did not accept the axiom of ‘Equality before Law’ as it is practiced in the present times.
A similar pattern is followed in the determination of the rights of the other varnas. For example, Sudras, due to the less strict character of their duties, on one hand enjoyed less privileged status in the society and were highly restrained in their freedom of choosing a vocation. They were also punished relatively severely for certain offences. But on the other hand, following the rule that "the higher the man, the fewer are his rights and the more numerous his duties", they were given certain privileges not enjoyed by the members of the other three varnas. For example, unlike other varnas, they were given greater freedom with respect to marriage and sex life; they were free from dietary restrictions; pursuit of sensual pleasures was not forbidden to them, and they were allowed to enjoy greater freedom and lesser responsibility with respect to observance of religious and social customs and traditions.
Again, a similar pattern is followed with respect to the determination of rights on the basis of ashrama-dharma. At each stage of life there are specific ends to be achieved. Corresponding to these ends are specific duties; and corresponding to these duties are specific rights. For example, by virtue of the special character of his duties a. grihstha (house-holder) is given some special property-rights which are not enjoyed by a student or a sanyasi; but there are some rights and freedoms which only sanyasi can enjoy and a house-holder cannot.
In short, the whole system is based on a correlation between svabhava (one’s nature), svadharma (one’s duties) and svadhikara (ones’ rights). From one's specific nature certain specific duties follow and these duties create certain rights. Obviously, due to the variability of svabhava, modalities of rights also vary, but this variability in the distribution of social, economic or political rights, does not hamper the progress of society. Nor it is against the democratic spirit. On the contrary, it enhances the growth and stability of democratic society by providing special opportunities to each person to develop according to his own nature.
As is obvious, rights in this scheme are of derivative character. They are derived from a more fundamental notion i.e. of duty or obligation. Of course there is a strict duty-right correlation, but it is very different in nature from the usual characterization of such correlation where one person's rights are supposed to give rise to duties of another person and vice-versa. Here one person's obligations make the person himself the bearer of certain rights. The argument is, since I' am morally bound to discharge certain obligations I must have corresponding rights which are necessary to enable me to perform my duties. Obviously, rights in this world-view are perceived not as "ends in themselves" but as necessary means or instruments to discharge certain obligations. As mentioned earlier, according to this system from svabhava (one's nature) follows svadharma (one's duties), and from svadharma follows svadhikar or rights. In other words, a person's nature (qualities and capabilities), determines his duties and duties determine what rights he or she may possess. Not only the origin, but the nature, content and the scope of rights also depends on the nature, content and scope of the corresponding duties.
An interesting implication of this right-duty correlation is that it presents an example of the reciprocal derivation of 'ought' from 'is' and 'is' from 'ought'. From the nature of man follow his duties, that is, what he ought to do, but from this 'ought' follow his rights, that is, what he is supposed to possess as part of his nature.
Another implication of this right-duty correlation is that the nature and status of different rights necessarily correspond to the nature and the mode of duties from which they are derived. The more fundamental and essential the duty is, the more fundamental and essential will be the corresponding right. In other words, the degrees of the inalienability, universality, absoluteness and unconditionality of rights will be determined by the mode and degrees of the different characteristics of the obligations for which these rights are supposed to function as means. This kind of approach naturally leads towards hierarchical categorization of rights in which rights are placed in order of their relative fundamentality determined by the fundamentality of the obligation they are meant to fulfill. For example, in this system human rights will be given priority over the rights of a civic person or the rights of a working person because, in comparison to the latter two, they flow from the duties which are more closely related to the fundamental and essential aspect of human nature. Even amongst different human rights this hierarchical ordering will be operative. Some rights will be considered more 'basic' than the others because these ‘others’ simply serve as helping or supportive instruments to realize the goals of these 'more basic' rights. In this system, problems regarding the conflict of rights are also settled by referring to the relative or proportional ordering of the corresponding duties.
In this duty-centric world-view, rights acquire a goal-oriented character. They are not cherished for their own sake. They are important, but their importance primarily lies in their instrumentality towards specific goals. This goal oriented view of rights helps in setting some objective limits on the process of generating new rights (which appear to crop-up like mushrooms these days and seem to have become “licenses for madness"). Every system of rights, if it wants to avoid charges of arbitrariness, must provide a generative principle which must explain why certain rights must necessarily be included in the list and why certain others must necessarily be excluded. Why, for instance, it must include rights to certain things such as life, freedom, property or equality, and must definitely exclude certain other rights, such as right to deceive people, right to slavery, right to discriminate on the basis of color, right to massacre a whole race or right to burn alive all black-haired men. Each time a new right is claimed or is demanded, the basic question to be answered is - what goal it aims at? What purpose will it serve, and how essential, moral and just that purpose is? Answer to this question will definitely restrict indiscriminate and arbitrary inclusion of rights. Moreover, in this system, rights cannot be perceived and exercised as absolute, unconditional privileges or absolute unaccountable powers. Rather they can only be viewed as 'authentic' powers having legitimacy only as long as they are used for just purposes, in a just manner.
Thus, the system of rights advanced here puts an effective check on the possibility of the inclusion of putative immoral rights and cannot be misused to permit the pursuit of prima facie immoral ends.
The goal oriented character of rights also succeeds in keeping a right balance between the authority of the society or the State and the autonomy of the individual – the most disturbing problem of our present day political-social phenomena. On one hand it puts regulative limits on the exercise of rights by individuals, on the other hand it extends the area of society's obligations towards its members. It obliges society not only to remove hindrances in the path of the exercise of rights but also to provide structures and institutions which can create conditions appropriate for that exercise. Rights in this system do not remain confined to the mere guarantee of non interference from the external forces such as society or other human beings, but also become positive instruments in the realization of certain universal values.
Another important feature of this obligation based system is that it maintains that the roots of human rights lie in the spiritual aspect of human nature. Man as material individual is not only conditioned by the limitations of the physical world but can also be subjected to the coercion of society and its institutions. It is only his supra - temporal, spiritual destiny as a atman or soul (in the form of moksha) that makes him capable of transcending the limitations of time and space, history and culture, nation and state, race and sex and provides him with some primordial rights as universal, unconditional and inalienable as the ultimate purushartha of moksha is.
It may be noted that this duty-based characterization of rights in no way diminishes their importance. Rather, it seems to add new dimensions to it. The strict duty-right correlation makes rights very specific, concrete and consequently more effective in the practical realm. They no more remain simply abstract principles capable of being variously interpreted or misinterpreted. They become concrete instruments of realizing the ultimate aims of human essence. Moreover, their derivation from moral obligation gives them significance of a 'value' and in a way makes them elements of ideal realm. Thus we see that the instrumentality of rights neither negates nor undermines their importance. On the contrary, it strengthens their theoretical plausibility and enhances their practical efficiency.
- Human Rights : The Indian Perspective, by Prof. (Mrs.) Kusum Jain, Co-coordinator, CAS, Department of Philosophy, University of Rajasthan, Jaipur – 302004 India.