EVOLUTION OF HUMAN RIGHTS: FROM NATURAL RIGHTS TO POSTMODERNISM
by Tipu Salman Makhdoom
I- INTRODUCTION:
“[W]ar
crimes are being committed in special women’s concentration camps where little
girls, girls and women are being raped in the presence of their parents,
brothers and sisters, husbands or children. After that, according to witnesses’
statements, the raped persons are further brutalized and even massacred, their
breasts are sliced off and their wombs are ripped out….The young girls couldn’t
physically survive the rapes and quickly died…..[O]ver 300 young girls in The
Home for Retarded Children were raped.”[1]
Such incidents were not as rare as the conquest of Troy through Trojans’ horse.
These brutalities and inhumanities had become part of everyday life of sizeable
portion of human civilization; civilization that is nearest to us in historical
time and was at the zenith of its intellectual triumph in the turbulent times
of the catastrophe that engulfed the entire world for more than half the decade
and is now remembered as the Second World War. It was in fact this height of
inhumanity by the humans which became the catalyst for the emergence of Human
Rights. This is a brief discussion on the origin and development of Human
Rights in today’s world.
The discussion
will start with general introduction of rights in a politico-legal system from
where a historical string of different philosophical approaches to inherent
natural rights of men will be traced. Thereafter emergence of Human Rights as a
result of atrocities committed in the Second World War will be analyzed ending
on the postmodern panoramic view of the reality and Human Rights.
II- HUMAN
RIGHTS ARE SPECIAL RIGHTS:
A loosely
defined set of values and a general perception of goodness in a society, which
the society is ready to force upon its members by showing its displeasure but without
the use of any organized force, is called its morality. Law, on the other hand,
is the set of political decisions of the society which are implemented by the
organized arm of the society i.e., government. In this state of affairs, a right
is a social privilege which a person is entitled to claim against other members
of the community. If the force behind this claim is the general social will of
the community, the privilege is known as moral right. However, if the force
behind the protection and enforcement of such a social privilege is the legal
force of the polity, the privilege is called legal right or simply the right.
In all the
developed legal systems, especially the ones based on written constitutions,
there are at least two hierarchies of rights; legal rights and fundamental or
constitutional rights. Legal rights are the privileges which cannot be taken
away from the citizens unless a majority of the representatives of the whole of
the society votes in favour of such a lapse. This is called the democratic
protection of the citizens’ legal rights and in this respect these are much
secure than an individual member’s moral right, the snatching of which is
absolutely free of any such procedural requirements. Constitutional rights, on
the other hand, are considered even more secure because written constitutions
are normally rigid and require more than simple majority of the polity before
these can be amended. Thus a right which has been given by a Constitution
cannot be taken away by simple majority vote and is more secure than a mere
legal right. Likewise, a Human Right is a right which has been bestowed upon
every person of the world by the international community of states and has been
enshrined in the Universal Declaration of Human Rights of 1948. In that sense a
Human Right cannot be snatched away from a person even by the unanimous
decision of his society or state. In this view of the matter, a Human Right is
a very special kind of a right.
There are
several popular definitions of Human Rights, but the one given by the Nobel
Laureate Amartya Sen is simple and specific. It defines Human Rights as those
rights which every person anywhere in the world, irrespective of citizenship or
territorial legislation has, and which others are obliged to respect.[2]
III- ORIGINS
AND EVOLUTION OF HUMAN RIGHTS:
Human civilization has a long tradition of recognizing
that human beings get certain rights by virtue of their species i.e., being
humans. This idea has been recognized by both religious as well as secular
scholars. In terms of philosophy, these rights are often called natural rights.[3]
Natural rights are a product of natural law tradition, which is a phenomenon of
classical era of philosophy. For the Classical world view, universe was based
on basic eternal principles, be they religious doctrines of Judaism, Buddhism
or Christianity, or the ultimate truths of the Greek philosophers like Justice
and Goodness. The idea was that just as the working of the universe was based
on the ultimate principles, so the natural working of the social and individual
human life is also based on the ultimate and eternal principles. In order to
lead a just and happy individual as well as social life man had only to
discover and follow these eternal Grund norms.
Natural law
world view maintained that human beings have a certain definitive character or
nature which obligates that certain privileges should always remain available
to every human being, above and beyond circumstantial realities.[4]
Unless recognized by a certain politico-legal system as rights, the status of
these rights, for a given politico-legal system, remains that of a moral right.
This moral character of natural rights takes them above the recognition
mechanisms of a particular politico-legal system and makes them available to
every member of the human species, irrespective of sex or ethnicity. In this
sense, natural rights rightly claim to be predecessors of modern day concept of
Human Rights.[5]
The history and
development of natural rights can be traced all the way back to the start of
recorded history; and interestingly, their assertion and development, in one form
of another, have always been enshrined in the human thought. Thus Code of
Hammurabi (Babylon-Iraq, 1795-1750 BC), in its preamble defined the fundamental
function of government as: “to bring about the rule of righteousness in the
land, to destroy the wicked and the evil-doers, so that the strong should not
harm the weak……and enlighten the land, to further the well being of mankind.” Then
came the Egyptian civilization of Pharaohs which defined the main purpose of
its law as to “make sure that all is done according to the law, that custom is
observed and the right of each man respected.” Persian civilization under Cyrus
the Great recognized liberty and security, freedom of movement and religious
belief and property rights for all. Judaism provides, in Old Testament, Isaiah
58:6-7: “undo the tongs of the yoke, let the oppressed go free…..share your
bread with the hungry, and bring the homeless poor into your home.” Vedas of
Aryan Civilization of India provide “non-injury is not causing pain to any
living being at any time through the action of one’s mind, speech or body”. Buddhism,
from the land of great Indus Valley Civilization provides dignity of all forms
of life and duty of all of compassion and charity to others irrespective of sex
or ethnicity. Confucianism from the lands of China proclaims that “within the
four seas all men are brothers” and further “do not impose on other what you
yourself do not desire.” Greek philosophy developed the idea of natural law
which included the concepts of equal respect for all citizens and equality of
all before law. The Great Chinese General Sun Tzu in his world renowned
treatise of war The Art of War (4th Century BC) directs that
an obligation exists to care for the wounded and prisoners of war. The edicts
of Asoka the Great (India, 300 BC) guaranteed freedom of religion and other fundamental
rights for all. The great Indian laws of Manu prohibit killing of anyone who is
sleeping; who is unarmed; the one who is naked; anyone who is deprived of his
weapons; one who is only looking on and not fighting, and also not to kill anyone
who is engaged in fighting with another person. Prisoners of war, the sick and
the wounded were also to be well treated. Great Roman senator Cicero maintained
that each person had inherent dignity which obliges others to respect it. Christianity
in New Testament ordained that “there is neither Greek nor Jew, nor slave nor
free, nor man nor woman, but we are all one in Christ” and also to “do unto
others as you would have them do unto you.” Islam is also a prominent proponent
of natural rights wherein the sacred book Quran proclaims sanctity of human life,
freedom, mercy, compassion and respect for all the human beings without regard
to race or sex. The Common law milestones of Magna Carta (1215), Petition of
Rights (1628) and Habeas Corpus Act (1679) assures that “no freeman shall be
arrested, or detained in prison or deprived of his freehold…..except by the
lawful judgment of his pears or by the law of the land. Hungarian King Andras
(1222 AD) recognized the rights of the citizens to disobey royal acts not
conforming to the rule of law. British Philosopher John Locke in his Second Treatise
of Government (1690 AD) declared that every human being, even in the state
of nature and before existence of any organized political government, possessed
certain natural rights which are intrinsic to him being the member of human
species. In French Revolution, Declaration of the Rights of Man and Citizen
(1789) proclaimed that “all are born and remain free and equal in rights.” A
popular leader of American War of Independence, Thomas Paine, in his all time
best-seller The Rights of Man (1791) introduced the expression “human
rights” in the concrete form for the first time in history. The famous French
philosopher Jean Jacque Rousseau declared that man is born free with intrinsic
worth.[6]
The most
popular natural law advocate of modern era was British Philosopher John Locke
(1632-1704). He popularized the view of social contract in political philosophy
and maintained that people form societies, and in turn political governments so
that their government could protect their natural rights as a community. According
to Locke, citizens had every right to disobey and challenge their government if
it fails to protect these natural rights.[7]
Modern day natural law theorists expanded natural rights to overflow from the
reign of morality to legality. They developed the argument that since natural
rights are inherent in all the human beings by virtue of their being humans,
social and political justice demands that their such rights be respected and
protected not only by other individuals but also by governments; natural
rights, thus, became one of the basic ingredients of ultimate and timeless
principle of ideal justice.[8]
With the start
of second half of the last millennium, human intellect progressed from
classical to modern era. The modern age of human civilization was triggered by the
scientific discoveries through which man realized that universe was in fact governed
by logic, and thus same should be true for social and individual human life. Therefore,
according to modern world view, social and individual life of men should be
conducted in accordance with logic and reason. In law, this triggered the
concept of positive law which meant that in tackling its realities, whatever a
polity would decide, will become law. Thus modernism’s idea of finding
solutions to social problems through application of universal reason replaced
the classical ideal of doing the same through discovering and following pre-determined
rigid and stagnant principles.[9]
Though this certainly did not mean the death blow to the concept of natural
rights, it definitely did throw it out of the main stream; and along with it the
prospect of any principle being higher than the State and consequently any
possibility of challenging the State’s order, no matter how cruel or wrong, on
any ground whatsoever.
IV- SECOND
WORLD WAR AND HUMAN RIGHTS:
More than 100
million people died in two World Wars of the last century; three quarters of
which were slaughtered in Second World War. The Six Years’ Great War, popularly
known as 2nd World War (1939-1945 AD) was unique not only because of
the number of states and continents that were involved in the fighting, but was
also matchless in the brutality that was thrust upon by rational men over their
rational brethren. The horrible face of
the modern concept of rational positive law was exposed in what is remembered
as Holocaust committed by Nazi Germany in the Second World War. More than 10
million innocent and unarmed civilians, mostly Jews and Gypsies, were killed
brutally and mercilessly by the German army, in the name of ethnic cleansing.[10]
This shook the conscience of human race, at last.
Transcending
from the Greek notion of justice being to give everyone his share to St. Thomas
Aquinas’ concept of right being inherent in every human being and reducing law
to a mere instrument to protect these inherent rights, man reached to Rene
Descartes’ modernity—cogito ergo sum—reality is rational and rational is
reality. From unity in faith modern man moved on to unity in universal common
human reason. The modernity that had thrust the natural rights behind the
scenes became the sole reason, thanks to the brutality committed to human race
by it’s ‘the Sovereign State’ based on unrestrained positivist rational law,
for their powerful comeback as Human Rights.[11]
Experience
taught us that when people have defensible rights—when their agency as
individuals is protected and enhanced—they are less likely to abuse and
oppression. Human Rights was a response to the craziest brutalities that can happen
when the Westphalian state was accorded unrestrained sovereignty resulting in
lack of criteria for its citizens in international law to disobey their state’s
legal but immoral orders. Thus Universal Declaration of Human Rights is a major
fire-wall created against any future acts of state barbarism against humanity. The
scenario of pre-Second World War, where citizens were literally helpless on the
face of barbaric orders of their state was changed topsy-turvy and
international law, in the shape of Universal Declaration of Human Rights of
1948, granted individuals the rights that they could now exercise to challenge
and resist the unjust and oppressive laws or orders of their state. The
atrocious acts of Nazi and Fascist states during the Second World War forced
mankind to demand legitimacy under the umbrella of which individuals can refuse
to obey the legal but inhuman state laws and orders. International community
provided this source to the citizens of the world, in the shape of Universal
Declaration of Human Rights of 1948.[12]
V- POSTMODERN
VIEW OF HUMAN RIGHTS:
The European
culture is historically a product of biblical idea of human nature; humans are
created in the image of God, but are not gods, humans can reason but not beyond
a point, from where only divine revelation can take them on the right path, the
path leading to the Kingdom of Heaven. Despite these short comings, because
humans are an imperfect image of God, they do possess certain intrinsic dignity
which comes with certain inherent rights as a package deal. And that
classical-biblical view was the foundation of the theory of natural rights of
the mankind. Modernists parted company with this medieval outlook on life. For
the modernist, man was a purely rational animal which did need truth, but this
truth, according to him, could be crafted independent of divine revelation,
solely through reason. In the modern view, self was autonomous. By autonomous
was meant that individual self was the ultimate existence of the self and the
community of individuals i.e., society, was an ultimate self surviving unit
which was all powerful over it members. The idea was that reason being a
universal and common faculty of human race, all rational people will come to
same rational conclusions and thus if human race can effectively use its
faculty of reason, it can live in peace and harmony. This idealist view was
completely shattered in the brutalities of the Second World War which lead to
the revival of idealism of Classical period and the re-emergence of inherent,
eternal and universal natural rights in the shape of Human Rights.
However, in the
decades following the end of the Second World War emerged what is now known as
the “Postmodern” world view. According to postmodern view, not only is there no
ultimate truth to be discovered, there is absolutely no concept of universal
reason even. In fact there is no objective reality. And since there is no
objective criterion to be used as a bench mark, there exists no universal
reality; all reality is relative. In other words, every human concept is a
social construct and every human thought has contextual meaning.[13]
Thus although origins of Human Rights was in the natural law concept of
universal rights inherent identically in every human being, their actual
effective globalization is the result of their getting local.[14]
Getting embedded in each social context according to its needs and
sensitivities is the actual triumph of Human Rights today.
VI- CONCLUSION:
In the
Classical period of human intellect, main thrust of the man was to understand
the world and himself within the four corners of divine revelation. Based on
the notions that God created universe and also created man in His image, the
idealist view of the time was that life is governed by divinely ordained
universal principles and the only requirement to lead good life was to discover
these ultimate principles and follow them. This gave rise to the idea that in
addition to the social, moral and legal rights, individuals also have some God
given rights which are inherent in every human being and since these are
divine, they are sacred and can only be taken away by God Himself; these would
be called the natural rights of men. With the turn of the 15th century
AD came the triumphant discoveries of science and technology and man realized
that life is being governed by reason and reason alone. This realization
replaced divine sacredness with sacred reason. Now the life-blood of universe
was reason and everything had to conform to hard-core reason. This concept
faded away the God given natural rights of men and replaced them with positive
rights which were squarely dependent on the sweet will of the state. The limits
of this theory showed its ugly face during the Second World War which cost
mankind more than one hundred million lives. The initial reaction of human race
was to fall back on the idea of natural rights which were re-named as Human
Rights and the basis of which, instead of divine grant, was made the universal
reason of the collective conscience of the world community. However, with
further progress of the human intellect, modern world view is giving way to the
postmodern world view. According to postmodernists, there is neither any
universal principle in the world nor any universal reason at the base of it.
According to postmodernists, there does not exist any universal reality. In
other words there is no possibility of any concept of universally acclaimed
Human Rights. The real success of Human Rights in today’s world is based on the
fact that individuals in today’s world need juridical resources to stand up
when the state ordered them to do wrong and this need has been fulfilled by the
Universal Declaration of Human Rights, 1948 which is being interpreted in every
society according to its cultural context to make it effectively implementable.
[1] Stephen Shute and Susan Hurley (Ed),
On Human Rights, The Oxford Amnesty Lectures, 1993 (Basic Books, A
Division of HarperCollins Publishers, 1993) 2.
[2] Amartya Sen, Elements of a Theory
of Human Rights, Philosophy and Public Affairs [Fall 2004] 315-356, 315.
[3] Jonathan Crowe, Explaining
Natural Rights: Ontological Freedom and The Foundations of Political Discourse,
New York University Journal of Law & Liberty [2009] 70-111, 71.
[4] Susan Muaddi Darraj, The
Universal Declaration of Human Rights (Chelsea House Publishers, An imprint
of Infobase Publishing, 2010) 24.
[5] Robert P. George, Natural Law,
Vol. 31 Harvard Journal of Law & Public Policy, No. 1 [2008] 171-196, 174.
[6] Dinah Shelton, An Introduction to
the History of International Human Rights Law, The George Washington
University Law School Public Law and Legal Theory Working Paper No. 346, Legal
Studies Research Paper No. 346, Working Paper (August 2007) 1-30, 1-7
[7]Bureau of International Information
Programs, U.S. Department of State, Human Rights in Brief [2014] 3-4. Available
at: http://photos.state.gov/libraries/amgov/30145/publications-english/humanrights_brief.pdf, last accessed on 29.01.2015.
[8] Robert P. George, Natural Law,
Vol. 31 Harvard Journal of Law & Public Policy, No. 1 [2008] 171-196, 172-173
[9] Alan M. Levine American University
& Darren M. Staloff, City College of New York and City University of New
York, Enlightenment Critics of Natural Law, 1. Available at: http://www.nlnrac.org/critics/enlightenment-critics.
Accessed on 29.01.2015.
[10] Susan Muaddi Darraj, The
Universal Declaration of Human Rights (Chelsea House Publishers, An imprint
of Infobase Publishing, 2010) 16-18.
[11] Romuald R. Haule, Some
Reflections on the Foundation of Human Rights—Are Human Rights an Alternative
to Moral Values?, Max Planck Yearbook of United Nations Law, Volume 10 [2006]
367-395, 370 to 379.
[12]Michael Ignatieff, I. Human Rights
as Politics, II. Human Rights as Idolatory, The Tanner Lectures on Human
Values, delivered at Princeton University [April 4-7, 2000] 285-349, 288-297. Available
at: http://tannerlectures.utah.edu/_documents/a-to-z/i/Ignatieff_01.pdf. Accessed on 29.01.2015.
[13] Jim Leffel, Engineering Life: Human Rights
in a Postmodern Age, CRI Statement DE-311, 1-8, 2. Available at: http://www.equip.org/PDF/DE311.pdf. Accessed on 29.01.2015.
[14]
Michael Ignatieff, I. Human
Rights as Politics, II. Human Rights as Idolatory, The Tanner Lectures on
Human Values, delivered at Princeton University [April 4-7, 2000] 285-349, 290.
Available at: http://tannerlectures.utah.edu/_documents/a-to-z/i/Ignatieff_01.pdf. Accessed on 29.01.2015.