The Development of International Human Rights Law

Volume I

Fionnuala D. Ní Aoláin, David Weissbrodt

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351545044
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

The essays selected for this volume, written by some of the worlds most respected experts on human rights, encompass the development of human rights law from its philosophical underpinnings and address many of its current controversies. The collected essays explore the drafting of major human rights instruments, including the political challenges that shaped those instruments; examine the interrelationship of various claimed rights; and identify factors producing compliance with - and violation of - human rights law. Other contributions analyze the role of non-governmental organizations in achieving better human rights protections as well as the danger of claiming too many rights, and the tension between rights and security. Contrasting viewpoints in several essays highlight some of the key conflicts in the field. An introductory essay provides a roadmap marking the collection's major themes, and tracing the relationship between those themes. Taken together, the essays emphasize the legal underpinnings of the human rights regime and as such, the collection provides an essential, wide-ranging account of this important part of international law, procedure and practice.

Part I
Philosophical, Religious, and Historical Influences underlying the Development of Human Rights Law

[1]
Origins: the Rise and Fall of Natural Rights

Michael Freeman

Why history?

The history of human rights can be studied for its own sake and for the sake of the light that it throws on the contemporary concept of human rights. Before we can study the history of human rights, however, we have to know what it is the history of. According to one view, the concept of human rights had little history before the establishment of the United Nations in 1945. On this view, the history of human rights would be the history of the UN concept. A more common view is that the contemporary conception of human rights has a much longer history. This view is better, because it enables us to investigate the historical and philosophical bases of the modern concept. It is, however, beset by controversy.

Some argue that the concept of human rights has a universal history in the various religions and philosophies of the world (UNESCO 1949; Chun 2001: 21), while others maintain that it originated in the West and was universalized only recently. Some argue that, if the history of the concept is Western, its validity cannot be universal. Others say that the history of a concept is irrelevant to its validity: there may be good reasons for universalizing a concept that has a particular history. Yet the validity of a concept depends on its meaning, and the meaning of the concept of human rights derives in part from how it has been used historically.

The most common view is that the concept of human rights originated in the West. Donnelly argues that, although non-Western cultures have important ethical concepts, they have traditionally lacked the concept of human rights (Donnelly 1989: part II). There is disagreement, however, about the history of the concept in the West. MacIntyre, for example, claims that, before about 1400, there is no expression in any language correctly translated by our expression ‘a right’. He doubts whether human beings could have had rights if they could not have expressed them in their language (MacIntyre 1981: 66–7). Others argue that the concept of rights was implicit in ancient cultures. Tierney, for example, suggests that the commandment Thou shalt not steal’ implies a right to property (Tierney 1988: 20–1). This controversy also has implications for the validity of the concept of human rights. MacIntyre suggests that the supposed fact that there was no concept of ‘rights’ before 1400 means that the concept of universal human rights is invalid.

Some scholars have argued that classical Greek thinkers could not think of individuals as having rights against the state because they believed that citizens were subordinate parts of the social whole. This idea, some say, was undermined by increasing social complexity which produced the concept of ‘individuals’, involved in various social relations, lacking definite social norms, and consequently having to create their own identities. The modern, complex society was, therefore, the precondition for the emergence of the concept of individual rights (Holmes 1979). This historical sociology of the concept of individual rights is thus supposed to undermine the concept of universal human rights. But is this history true?

On rights and tyrants

The contemporary concept of human rights is intended to protect individuals from the abuse of power by governments. Whether or not the ancient Greeks had a concept of rights, they certainly had the concepts of power and its abuse. This was expressed in the concept of tyranny, which was a form of government in which the ruler governed in his own interest and treated his people oppressively and unjustly. The concept of tyranny may imply that the rights of the citizen are being violated, but it was possible for the Greeks to think about tyranny without talking about rights. In Sophocles’ play Antigone, for example, the king forbids Antigone to bury her dead brother because he had been a rebel against the state. Antigone defies the king’s order, but on the ground that she has a religious duty to bury her brother, not on the ground that she has a right to do so. We might see this as a human-rights issue concerning freedom of religious practice, but Sophocles does not express it this way.

There are reasons, however, for rejecting MacIntyre’s view that the ancient Greeks had no language of rights. Aristotle had a conception of rights and a language in which to express it. Aristotle believed that constitutions could assign rights to citizens. Citizens’ rights included rights to property and to participation in public affairs. When these rights were violated, the laws determined compensation or punishment. Citizens’ rights would be distributed differently in different political systems, for example in oligarchy and democracy. There is a range of expressions in Aristotle that we can properly translate as ‘a right’. In particular, Aristotle used the expression to dikaion to mean a just claim, which we could translate as a right. Aristotle had no conception of human rights, however, as he believed that rights derived from constitutions, and that some men were slaves by nature (Miller, F. 1995).

Justice and rights

Roman law, through its influence on medieval ideas, provides the main link between classical Greek thought about rights and modern conceptions. The French historian Michel Villey initiated a debate on the distinction between objective right (that which is right) and subjective rights (personal entitlements). Villey argued that Roman law had no conception of subjective rights: the Latin word ius referred to objective right (Tuck 1979: 7–9; Tierney 1988: 4–6, 15). This view has been questioned on the ground that Roman law conceived of justice as rendering to each his right (suum ius) (Zuckert 1989: 74–5, 82). Whether ius was objective or subjective, it was legal, and not natural (Tuck 1979). The Stoic philosophers held that there was a natural law that was binding on all human beings, but they had no concept of natural rights. The Romans, therefore, like the Greeks, had no concept of universal human rights.

A clear shift from objective right to subjective rights took place only in the late Middle Ages, but how this occurred remains controversial. According to Tierney, medieval people had the concept of rights, and a language in which to express it, at least as early as the twelfth century (Tierney 1989: 626, 629). These rights were rights of particular persons, statuses, collectivities or classes. They were not natural rights. However, according to one conception of natural law, the right of nature was what was permitted by the law of nature. The rights of nature might be rights of individuals, but they were derived not from the nature of the individual but from the right order of society (Tierney 1989). The thirteenth-century writer Henry of Ghent held that each person had a natural right to self-preservation and property in his own body. This shows, Tierney argues, that the standard view, according to which the language of natural rights was a response to the emergence of complex, modern societies in the seventeenth century, is mistaken (Tierney 1992: 63–7).

The Magna Carta (1215) recognizes ‘subjective’ rights by such terms as ‘his right’ (jus suum) (Holt 1965: 96, 100, 104). The concept of rights was, however, at that time embedded in customary law. The Magna Carta was, further, not a summary of English law, but a text produced by specific political circumstances, and its purpose was to provide legal remedies for specific grievances. It was, therefore, not a charter of the rights of Englishmen, still less of human rights. Yet its reputation as a precursor of modern human-rights texts is not wholly unmerited. Article 39, for example, says that no free man shall be arrested, imprisoned, expropriated, exiled or in any way ruined, except by the lawful judgement of his peers or by the law of the land (Roshwald 1959: 361–4; Holt 1965: 1–2, 327). The Magna Carta emphasized property rights, but not only such rights, and it extended substantial rights beyond the baronial class. It was later transformed from a limited political and legal agreement into a national myth, and in the seventeenth century it was invoked as part of early modern debates about rights in England (Holt 1965).

One source of late medieval natural-rights theory was the dispute between the Dominicans and the Franciscans, who championed the life of poverty, and thereby called into question the legitimacy of private property. In 1329 Pope John XXII argued against the Franciscans that God had granted to Adam dominium (lordship) over temporal things. Property was therefore sanctified by divine law. By the fourteenth century it was possible to argue that to have a right was to be the lord of one’s moral world (Tuck 1979).

Natural rights

There is no direct line from medieval conceptions of ius to early modern conceptions of natural rights. The humanist lawyers of the Renaissance, for example, were concerned not with natural rights but with civil rights (Tuck 1979). By the beginning of the seventeenth century there were two principal traditions of thinking about rights. The first emphasized natural, subjective, individual rights and the second emphasized objective right and/or civil rights (Tuck 1979: 54–7; Tierney 1989: 621).

The Dutch jurist Hugo Grotius was a crucial figure in transforming medieval ideas into the modern concept of rights. He began with the proposition that the will of God was law, and was known through man’s sociability, which was the basis of all other laws of nature. Men had natural rights, but these were transformed by society. He conceived of ius both as what is just and as the ability of a person to have or do something justly. The law of nature concerned the maintenance of rights, the subject-matter of justice. ‘Rights’, Tuck says in his discussion of Grotius’ ideas, ‘have come to usurp the whole of natural law theory, for the law of nature is simply, respect one another’s rights.’ Everyone should enjoy his rights with the help of the community, which was required to defend our lives, limbs, liberties and property. Grotius held that moral obligations were owed not only to members of one’s own society, but to mankind as such. He also maintained that his theory of natural law did not logically require belief in the existence of God, providing thereby the basis for a secular theory of natural rights (Tuck 1979; Tierney 1989: 621–2).

In seventeenth-century England Thomas Hobbes drew a sharp distinction between right (jus) and law (lex). Since right was liberty, and law was restraint, right and law not only differed from each other but were also opposites. In the natural condition of mankind, everyone had the natural right to do anything that was conducive to their preservation. There was both an obligation under the law of nature and a natural right to preserve oneself. The natural condition of mankind was one of war of each against everyone else, and therefore one of great insecurity. Reason required men to authorize a sovereign to act on their behalf. All men were obliged to obey this sovereign, provided that he did not threaten their preservation (Tuck 1979: 126–31).

We are so familiar with the use of the concept of human rights to limit the powers of government that we may be surprised to learn that most early modern natural-rights theorists argued that rational individuals would give up their natural rights to absolute rulers for the sake of social order. However, in 1642 Henry Parker argued that everyone had a property in himself and a natural right to self-preservation which could not be surrendered to government. In 1644 William Ball said that the basic rights of the people of England could be pleaded against any government. Should the government violate such rights, they would be in breach of trust, and the people might defend their rights by arms if necessary. The law of nature permitted them to defend their liberties and properties, which no civil law could nullify (Tuck 1979: 144–8).

In the English Civil War the Levellers adopted the concept of individual, inalienable rights and maintained that Parliament was violating them. Richard Overton argued that all governments were trusts, because by nature everyone had a ‘self propriety’ which could not be invaded or usurped without his consent. By ‘natural birth’ all men were equally born to such propriety and freedom. The concept of ‘self propriety’ entailed freedom of conscience, equal rights in law, and the right of at least the majority of men to vote. John Wildman thought that the concept of natural rights entailed the principle of universal suffrage. The Levellers held that persons were prior to estates, which justified the right to subsistence and the legitimation of some redistribution of wealth (Tuck 1979: 148–50; McNally 1989: 35–7; Roshwald 1959: 369; Ashcraft 1986: 155, 160–1, 163).

By grounding rights in the law of nature, the Levellers emancipated such claims from historical precedents. Richard Overton maintained that reason had no precedent, for reason was the fountain of all just precedents. Laws and governments come and go, but right reason endures for ever. Arguments from reason were, however, mixed with arguments from history, including references to the Magna Carta. This mixture of natural-law and historical argument created some ambiguity as to whether the rights claimed were those of Englishmen or universal human rights. Roshwald suggests that their practical emphasis was on the rights of Englishmen, but their logic was universalistic (Roshwald 1959: 366–70).

The deep ground for opposition to political absolutism in seventeenth-century England was the Protestant belief that God had made human beings rational so that each could determine their own way to salvation. The Protestant conception of reason entailed freedom of the will, the legitimacy of independent action and dissent from authority. Religion, on this view, required conscientious action that could oppose the individual to authority. This argument claimed to be based on what was common to all men and represented rational individuals as having been created in a state of equality and freedom. No one was, therefore, subject to the absolute will of any other person. These individuals constituted a natural moral community, since they lived under a framework of moral obligations that were owed to each other and to God. By the use of their reason, they were able to discover these obligations contained in the law of nature. This law not only imposed duties but also accorded rights to individuals, including, especially, the righ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• PART I PHILOSOPHICAL, RELIGIOUS, AND HISTORICAL INFLUENCES UNDERLYING THE DEVELOPMENT OF HUMAN RIGHTS LAW
• PART II DRAFTING OF THE HUMAN RIGHTS PROVISIONS OF THE UN CHARTER AND OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS
• PART III THE DEBATE OVER UNIVERSALITY OF HUMAN RIGHTS
• PART IV INTERDEPENDENCE AND INDIVISIBILITY OF CIVIL, ECONOMIC, CULTURAL, POLITICAL AND SOCIAL RIGHTS
• PART V COMPLIANCE WITH HUMAN RIGHTS STANDARDS AND CAUSES OF HUMAN RIGHTS VIOLATIONS: POLITICAL, SOCIOLOGICAL, ECONOMIC, ETC./THE ROLE OF BYSTANDERS
• PART VI THE ROLE OF NGOS IN THE DEVELOPMENT OF HUMAN RIGHTS
• PART VII PROLIFERATION AND OVERLAP OF HUMAN RIGHTS; TOO MANY RIGHTS?
• Name Index