“Human” means “relating to
human beings”, relating to members of the races of homo sapiens – men
women, children.
‘Right’ refers to that
which is just or correct, truth, fairness, justice, just or legal claim.
‘Human Rights’ mean the
freedoms, immunities and benefits that according to modern values, all human
beings should be able to claim as a matter of right in the society in which
they live.
In this article, you
should be able to define or explain the term “Human Rights”, differentiate the
nature and scope of human rights on the basis of ideology, explain whether or
not human rights are time and culture specific or universal and give a
historical account of the evolution of human rights from pre-modern age.
Classes of Human Rights
There are different
categories of rights which pertain to human beings. Some are immediately
enforceable binding commitments. These latter rights are reflective of the
values of the community.
Others are regarded as
merely specifying possible future patterns of behaviors. These rights savor of
ethics and morality. Entitlement to them can only arise under specific
conditions.
Thus enforcement and
sanction determine the characterization of any particular human rights
Ideology and Moral Rights
Adherents of the natural
law principles have said that certain rights exist as a higher law than the
legal system or any positive law. Such rights are universal and absolute,
irrespective of space and time.
For example, the social
contract theory postulates the existence of inalienable right to life, liberty
and property, which serves as a powerful restraint on arbitrariness.
The United States
Declaration of Independence (1776) was a restatement of the Natural Law
postulate.
Marxists have little place
for human rights within the framework of the legal order. Tunkin emphasized:
“conventions on human rights do not grant rights directly to individuals” the
contents of human rights obligations are defined solely by the state in the
light of the socio- economic advancement of the state.
Human rights means no more than that
(a) All states have a duty to respect the
fundamental rights and freedoms of all persons within their territories.
(b) States have s duty not
to permit discrimination by reason of sex, ethnicity, religion or language
(c) States have a duty to
promote universal respect for human rights and to cooperate with each other to
achieve this objective.
Positive rights are
contained the Legal System. It is discoverable from the system with or without
moral or ethical consideration.
Positivism has little place
for human rights beyond these rights that are enshrined in the legal system.
This is consistent with its doctrines of state sovereignty and supremacy of
national jurisdiction.
Following important
development in the 20th century, as you will see later, some basic civil and
political rights became universal constraints of powers of governments.
Such rights acquired recognition,
meaning and effect irrespective of space and time.
But note the following
observations:
1. Economic rights were
only desired.
2. Colonized peoples were
hardly heard, and were denied of human rights especially right to freedom.
3 Economic inequalities of
states was a non-issue.
Certain issues also arose
e.g.
- Whether the concept of
human rights differ in different culture.
- Whether human right are
granted to all individuals, regardless of culture and by reason only of their
membership of human race.
Perhaps it is human right,
what the international community accepts as human rights.
Human Rights: Historical Perspectives
The global concept of Human
Rights transcends any known period in history. History itself is full of event
and struggle for rights by people all over the world at all times.
The fight for the
protection of Human rights still continues, and the main organization in the
forefront is the United Nations Organization and lately the African Union.
From Biblical history, we
see that the ancient Israelites made efforts, at one time in Egypt, at another
time in Babylon, to free themselves from slavery and bondage. Essentially, the
concept is an evolution of revolt against authoritarianism, tyranny, slavery,
discrimination and all other ways by which rights, which are innate to all
human beings have been suppressed.
Amongst the writers on
Human Rights, the settled fact is that the human being, without any regard to
time and space, is entitled to the exercise of some freedoms. These freedoms
are not granted by any authority but they are paradoxically claimed and
exercised by every human being as of right.
These include freedoms of
worship, speech, association, opinion and of the pursuit of happiness and
worthwhile vocations and professions.
The first use of the word
with an equivalent meaning of freedom was in the 24th century B.C. in the
Lagash province of Sameria. Then the king of Lagash, Urukagina, had to come to
the aid of his citizens against the tax collectors and the high Priests.
Urukagina had no other option but to chase the tax collectors and high Priests
out of town in order to save his crown from protests from his subjects.
The Progenitor of Human
Rights in Natural Law
This is the jurisprudential
aspect of law that was developed by the ancient Roman and Greek Philosophers.
Much of the content of
literature on Human Rights, as we have them today, however, is an improvement
on Roman Law by the Hellenistic stoic philosophers.
At the time, Roman Law had
what they called the Jus Gentium.
These were the laws and
rules basically for all mankind.
During the tyrannical
period, the question of the “Rights of Man” became a slogan in the struggle
against the injustices and indignities committed by some governments. These
“rights” were termed “natural rights” and they were claimed to derive from
“natural law”, the law that ruled the universe.
The Stoic philosophers declared
their unreserved conviction for a natural law which they said ruled over gods
and men. Sophist’s heroine, Antigone declared that there were laws higher than
the royal laws and the kings’ government.
Through these laws, she
contended that she and every human being had certain rights which though could
be violated by royal force yet they could never be cancelled or taken away.
The origin of natural law
is ascribed to the old and indefensible movement for the progress and maintenance
of eternal and immutable justice.
This justice, d’ Entreves
said
…is conceived as being
higher or ultimate law, proceeding from the nature of the universe from the being
of god and reason of man.
d’Entreves added that.
…Law in the sense of law of
last resort is somehow above law making … Lawmakers, are under and subject to
law.
He concluded by saying
that:
…it was among the stoic
philosophers of the Hellenistic age that the movement first attained a large
and general expression and the expression became a tradition of human civility
which runs continuously from the porch of the American Revolution of 1776 and
the French Revolution of
1789….
Aligning with d’ Entreves,
Bodin, the celebrated French Jurist held that though the acts of the sovereign
were ultimate yet the sovereign was bound by the laws of God and nature.
The Stoic’s conception of
natural law was strictly upheld by the Romans.
Cicero’s opinion was that
natural law allows any part of it to be repealed entirely.
We cannot be freed from its
obligations by senate or people “…And there will not be different laws at Rome
and at Athens or different laws now and in the future but one eternal
unchangeable law will be valid for all nations and for all time.”
Cicero’s immutable natural
law gave birth to human rights which down the ages up to the present day have
been the hall mark of constitutional provisions on fundamental human rights in
different countries.
All nations have tried to
standardize their provisions on Human Rights though not all of them practice
them to the letter.
Human rights are natural
rights which are conferred by natural law on every human beings and are: …not
the particular privileges of citizens of certain states but something to which
every human being, everywhere, was entitled by virtue of simple fact of being human
or rational.
These natural rights are
the special gifts to human beings by nature which are standard, immutable and
universal. They are only comprehensible to human beings alone.
About this Gaius Ezejiofor
noted that;
…men…could comprehend and
obey this law of nature because of their possession of reason and capacity to
develop and attain virtue. They were by this able to emphasize the notion of
freedom and equality of all men.
The views of other writers are not different, most especially on its universality, immutability and uniqueness.
In the words of Louis Henkin: Human rights are claims which every individual has, or should have…to call them human suggest that they are universal.
They are the due of every
human being….They do not differ with geography, history or culture, or
ideology, political, or economic stage of development.
Gaius Ezejiofor highlighted
the existence of some specific fundamental human rights in some ancient Greek
city states even before the advent of the much talked about stoic philosophers.
He mentions, for example,
“Isogoria” being equal freedom of speech; ‘Isotimia”, being equal respect for
all; “Isonomia” being equality before the law.
These are all rights
existing in the Bill of Rights of all civilized nations today.
Conclusion on Human Rights in Pre-Modern Times
You
have defined human rights. You can then visualize human rights form the
perspective of persons claiming them and also from the perspective of those
whose duty it is to protect them. You have also seen the approach of the
exponents of the principles of natural law, positivism, Marxism as the
developing sates. Human rights exist social as social facts.
In
this post, you have learnt about what ‘human Rights’ is, what is or what is not
human rights may all depend on acceptance by the International community.
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