HISTORICAL EVOLUTION OF HUMAN RIGHTS DOCTRINES
The expression “human rights” is relatively new. It came into public discourse after World War II to replace older terms, such as “natural rights” and “rights of man.” The term “natural rights” was disfavored due to its association with dated concepts of natural law.
In addition, with the emergence of feminist movements and other social changes, the term “rights of man” was replaced so as to make clear that women are included.The concept of the “rights of the individual” goes back at least as far as Ancient Greece and Rome. Antigone, in the tragedy of Sophocles (c. 496-406 BCE), while overlooking King Creon’s order not to bury her murdered brother, insisted that she acted in compliance with the unchangeable divine laws, which lay above the regulations introduced by the people. Moreover, Stoicism (fourth century BCE), the Greek philosophical school, proclaimed that a universal working force pervades all creation and that human conduct therefore should be judged according to, and brought into harmony with, the law of nature (Weston, 1989, p. 13). Later, Roman law inspired by the doctrines of natural law1 and ιus gentium (law of nations) allowed universal rights to be enjoyed irrespective of citizenship. Ulpian (third century; d. 228), the Roman jurist, proclaimed that natural law is valid for all people, Roman citizens or not.
The earliest rules about standards of social behavior mostly dealt with the prohibition of conduct that caused conflict. Roman and Byzantine lawmakers (for example Justinian, 483-565) attempted to codify rules and establish consistent schemas of rights and obligations. Also, the major religions of the world (Buddhism, Christianity, Hinduism, Islam, and Judaism) have all established ethical and moral codes of conduct deriving from divine law. Standards of behavior regulating the relations of people as well as explicit ideas on the value of human life were implemented.
Although in the writings of Aristotle (384-322 BCE) and St. Thomas Aquinas (1225-1274) there were grains of modern notions of rights, the idea of human rights, as perceived and universally accepted nowadays, did not take hold until certain historical changes occurred. Even though notions of human dignity permeated every attempt to introduce a framework for human conduct and interaction, fundamental rights, such as those of freedom and equality, were not explicitly recognized. At the same time, the doctrines of notable philosophers recognized the legitimacy of slavery and villeinage.After the Renaissance (fourteenth-fifteenth centuries), which emphasized self-expression and independence of thinking, and the Peace of Westphalia (1648) with the subsequent decline of feudalism, there was a shift from natural law as duties to natural law as rights (Weston, 1989, p. 13). Previously, someone could possess privileges and duties because of his social status or relationships. Then, the emphasis was shifted to the needs and participation of the individual. For the first time in history, the individual and his/her needs and dignity were brought into public discourse. At the same time, there was a spread of liberal ideas of freedom and equality across the European continent. Hence, we suggest that the foundations of the modern concepts of human rights were laid during the intense social changes in Europe during the sixteenth and seventeenth centuries. Proofs of the changes are the influential teachings of philosophers such as Hugo Grotius (1583-1645), Thomas Hobbes (1588-1679), and John Locke (1632-1704), as well as the English Bill of Rights (1689). The changes implied that humans are endowed with inalienable rights, which are never renounced or restrained by the claim that monarchs have rights inherited by their gods (Weston, 1989, p. 13).
During the Age of Enlightenment (seventeenth-eighteenth centuries), along with the discoveries of Galileo, the rationalism of Rene Descartes, the empiricism of Francis Bacon, and other advances in science, there was a growing interest in human thought and humanism, which stimulated the development of the ideas of the law of nature and encouraged discussion of a universal order.
John Locke claimed that certain rights pertain to individuals ipso facto, because they existed in nature before even any organization of the society. He also argued that the rights to life, freedom, and ownership are of the most predominant value. In addition, the writings of philosophers, such as Montesquieu (1689-1755), Voltaire (1694-1778), and Jean-Jacques Rousseau (1712-1778)2 contributed to the spread of ideas fighting intolerance, religious fanaticism, scientific dogmatism, and censorship.The evolution of human rights developed in parallel to the appearance of the modern state as the model of governance. The state emerged as an ideal to promote the interests of the people. Because the state and its mechanisms have been vested with power and enforcement mechanisms, exercising the power could constitute a threat to the life and well-being of its citizens. Hence, the rights of the citizen function as “security” mechanisms to overcome the tension between the power of the state and the well-being of its citizens, whose interests the state is supposed to promote and protect. In other words, rights function as a protection for the citizens against the sovereign powers of the state itself.
The suggestions of Rousseau concerning the social contract between citizens and the state, as well as Locke’s suggestion that the individuals by participating in civil society cede only the enforcement of those natural rights to the state but not the rights themselves, have stimulated the emergence of the doctrines of the rights of man. Thus, the rights of citizen in the framework of the state became part of the political agenda by being based on the then “discovered” and proclaimed universal axioms governing nature and humanity. Rights of man were evolved in favor of citizen’s protection against the sovereign state and its legitimate authority. (See Tomuschat, 2003, pp. 7-8.) In other words, governments come into power with the consent of the people. Therefore, people are always entitled to revoke their mandate to government, which is bound to exercise the powers of the state in their name.
The aforementioned liberal ideas on the nature of the rights of man have also traveled from Europe to North America during the war of the colonies to achieve independence from the British crown. Thomas Jefferson (1743-1826), inspired by those ideas, insisted that his fellow countrymen were “a free people claiming their rights as derived from the laws of nature and not as the gift of their Chief Magistrate.” This doctrine prepared a fertile ground for the Declaration of Independence in 1776, which eloquently expressed that “all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty and the Pursuit of Happiness.” A few years later, in France, following the revolution of 1789, another important document, the Declaration of the Rights of Man and of Citizens (1791), was formulated; it was a forward-looking step for the concept of human rights as they are understood now.
The idea of natural rights or the rights of man had a pivotal role during the eighteenth and nineteenth centuries, aiming at limiting political absolutism (Weston, 1989, p. 14). They emerged as a response of the failure of rulers to respect freedom and equality. Therefore, it is frequently claimed that humanity had first to go through certain social and political changes in order to accept that all individuals are entitled to basic and fundamental rights.
Nevertheless, because of the absolute character of those natural rights (inalienable, unalterable, and eternal) as well as the fact that they claimed a respect erga omnes (in relation to everyone), sometimes it was proved that rights were in conflict with one another. Moreover, natural law theories received much criticism, especially during the second half of eighteenth and early twentieth centuries. Jeremy Bentham (1748-1832), John Stuart Mill (1806-1873), Henry Maine (1822-1888), Friedrich Karl von Savigny (1779-1861), Ludwig Wittgenstein (1889-1951), German Idealists, Utilitarians, Marxists, and other schools of philosophy tried to give their explanation of the “idiosyncrasy of rights.” The main points of controversy were whether natural rights or rights of man derive from the law of nature or they should be closely regarded through the lens of legal positivism.3
Yet, the tragic events of World War II and the Holocaust showed in practice that certain actions are absolutely wrong irrespective of any doctrine.
It was also made clear that a human right is natural in the sense that everyone is entitled to them not because of a legal process or because of belonging to any legal system, religion, political entity, race, gender, and so on, but simply by being human. Although human rights can be asserted against individuals, their main political objective is oriented toward the state, which has to protect, respect, and advance them.In addition, it should be stressed that human rights, as perceived by the international community, encompass an immanent contradiction in terms. They proclaim the universality of their nature by emphasizing the position of the individual at the same time. The individual, however, is a social creation, whereas in times and cultures past, such a term might have been inappropriate or even unacceptable. Certain dynamic processes, though, have stimulated the shift toward the individualization of rights and created the need for a better protection of the individual as a unit within society. Through the lens of modernization, it can be argued that three major social and historically recent changes underpinned the aforementioned shift: the urbanization or industrialization of societies (pluralist, complex, and heterogeneous domains); the proliferation of education and information (encounter of new ideas); and the spread of mass media introducing new social imaginaries, encounters with materialism, and so on (see Donnelly and Howard, 1987, pp. 15-18).
The end of World War II created the opportunity for a reformulation of the relationships between human beings and states. A window of opportunity emerged with the establishment of the United Nations in 1945. On December 10, 1948, the United Nations adopted the Universal Declaration of Human Rights, which opened a way for an articulation of human suffering that was to be prevented and an expression of human desire that was to be fulfilled.4