The Historical Theory of Rights emphasizes that rights are the product of history. They have their origin in customs which once possessed practical social utility and passed on from one generation to another, ultimately having been recognised as inherent claims or rights.
Ritchie says that “those rights which people think they ought to have are just those rights which they have been accustomed to have, or which they have a tradition (whether true or false) of having once possessed.
Custom is primitive law.” In explaining natural rights, advocates of the historical theory maintain that custom is their sanction. They are considered fundamental to the development of man, because they have been maintained by a long unbroken custom and the generations have habitually followed them: Habits are ‘natural’ as they grow. They are neither instituted nor are they invented.
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Burke maintains that the French Revolution was based on the abstract rights of man, whereas the English Revolution was based on the customary rights of the people of that country. There is much truth in what Burke says.
The French Revolution itself was the result of the conditions that prevailed in the country, but its slogan was liberty, equality and fraternity, the three abstract principles of universal application.
The Glorious Revolution, on the other hand, was simply a reassertion of the historic liberties of Englishmen, which had been their heritage since the days of the Anglo-Saxons, and had found due expression in the Magna Carta, the Petition of Rights, and various other documents of constitutional importance.
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There is much truth in the Historical Theory of Rights and many of our rights really find their origin in primitive customs. It does not, however, mean that the origin of all rights can be traced to customs and traditions.
When rights are rigidly tied to customs alone, we altogether ignore the dynamic nature of society and the changing contents of rights. Rights change with the facts of time and place. History, as such, is not the only basis of rights and customs do not provide an absolute right or standard.