History of Natural Law and Human Rights

Info: 3035 words (12 pages) Law Essay
Published: 1st Jun 2020

Share this: Facebook Twitter Reddit LinkedIn WhatsApp

The idea of equality of all human beings by birth having equal natural rights that may be set in law is going back to the beginning of history of human civilisation, rooted in historical past and is associated with the struggle of individuals against injustice. Although the term ‘human rights’ is relatively recent, the concept that an individual possesses certain basic, inalienable rights as against a sovereign State had its origin in the principles of Natural Law and Natural Rights or the Rights of Man (Cranston, 1962).

The concept of Natural Law originated in ancient Greece. Under this concept an individual’s rights arise from nature and therefore cannot be given or assigned by the political powers. The core principle of Natural Law is the principle of morality and therefore close connection exists between the law and morality.

The idea of the state centred on equality for all its citizens arising from the law of nature was expressed by many ancient Greek philosophers. For example, Antiphon of Athens describes all persons having equal natural needs regardless of their position in society. Antiphon recognises inequality as consequence of laws made by humans. Antiphon’s Truth postulates freedom of individuals and equality of human beings in the spirit of democracy and individual rights (Bartosz Wojciechowski, Tomasz Bekrycht, Karolina M. Cern, 2017).

Many ideas on rights, equality, justice and laws initially outlined by ancient Greek philosophers like Socrates and Plato were further developed by Aristotle (384-322 BC). Aristotle’s work on natural law is reflected in Nicomachean Ethics, some opening passages of the Politics, and Chapters 10, 13, and 15 of the first book of the Rhetoric (Syse, 2004).

In Aristotle’s view political justice is possible only between free and equal citizens; he supports the individual’s and private property rights. Aristotle advocates an idea of natural right or the ‘right by nature’ that does not need a legislative framework, laws and agreements as the natural rights exist separately from the norms established by humans. For better functioning society, where individuals can achieve their full potential, Aristotle proposes introduction of a governing law based on reason and corresponding with political justice and rights. All human beings, according to Aristotle, are conditioned by nature to develop moral values: ‘Neither by nature, then, nor contrary to nature do the virtues arise in us; rather we are adapted by nature to receive them, and are made perfect by habit’ (Aristotle, Nicomachean Ethics, bk. II, Ch. 1, 1103a24-25 cited in Syse, 2004).

Aristotle’s ideas and teaching paved the way for other thinkers and philosophers who expanded on ideas of Natural Law. One of them was Thomas Aquinas, an Italian theologian, whose works advanced the theory of natural law in the 13^th century in Europe. Although Aquinas never uses the term human rights and did not develop a theory of human rights, he has conceptualised Aristotelian teachings on natural law and justice in Nicomachean Ethics (Lisska, 2013). According to Aquinas, in analysis derived from Aristotle’s work, justice exists in two kinds: justice that is natural and justice that is positive. The natural justice exists by the nature of the case and positive justice exists as a relationship between individuals or between the citizen and the state. The concept of justice also implies the principle of equality. Aquinas states that justice ‘It is proper to justice, in comparison with the other virtues, to direct human persons in their relations with others; this is appropriate because justice denotes a kind of equality’ (Thomas Aquinas, Summa Theologiae, IIa–IIae. Q. 57, a. 1 cited in Lisska, 2013).

The concept of Natural Rights emerged from the Natural Law in the era of Renaissance Humanism in the early modern period, moving the emphasis from the society to individual. Natural Rights gave the individual the power to challenge the injustice and make claims against the state where before the natural law was more concerned with the relationship between the state and the society.. During 18th century ‘Age of Enlightenment’ the Natural Rights theory was conceptualised by Thomas Hobbes (1588 – 1679), John Locke (1632 – 1704) and Jean-Jacques Rousseau (1712 – 1778).

Thomas Hobbes was the first who formulated the theory of ‘natural rights’. He adopts the Aristotle’s position on the matter of equality between humans, stating that: ‘The question who is the better man has no place in the condition of mere nature, where (as has been shown before) all men are equal. The inequality that now is has been introduced by the laws civil’ (Hobbes, 1651).

John Locke, an English philosopher and creator of classical liberalism, describes a ‘state of nature’ where the natural rights belong to each individual citizen, including right to life, liberty and property. The natural rights also implied a principle of universality. John Locke developed the idea in his book,’ He argued in ‘Two Treatises of Government’ no governmental authority has power to deprive individuals of these rights because they exist before and separate to the creation of the civil or political society. He describes a state of nature as: ‘A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another, there being nothing more evident than that creatures of the same species and rank’ (Locke, 1823).

Jean-Jacques Rousseau had adopted and conceptualised many of Locke’s ideas on the Natural Law that eventually became the basis for the French Declaration of the Rights of Man and of the Citizen 1789. Rousseau proclaims in his book ‘The Social Contract’ that ‘MAN is born free; and everywhere he is in chains. One thinks himself the master of others, and still remains a greater slave than they’ (Rousseau, 1762). Rousseau also uses terms such as ‘inalienability’ and ‘indivisibility’ when talking about the Sovereign (a person or a group of persons that hold the highest power in the state; it is also applies to the legislator).

The classical Natural Law and more modern liberal and individualistic Natural Rights are historically connected and express moral ideas rather than enforceable legal standards. This gives a raise to dichotomy with the legal positivism of more modern times. Legal positivism is asserting that the only significant legal norms are those defined by enforceable positive law (the actual law of the actual state). Legal positivism, as a critique of Natural Law rose to prominence in 18^th and 19^th century and was articulated by John Austin and Jeremy Bentham. Bentham wrote in Anarchical Fallacies: ‘Right is a child of law; from real laws come real rights, but from imaginary law, from ‘Laws of nature’, come imaginary rights…’(Bentham, J. Anarchical Fallacies, cited in Cranston, 1962). The legal positivists and the proponents of Natural Law have one thing in common – they acknowledge the difference that exists between positive right and moral right (Cranston, 1962).

But what is a right? The main difficulty is that the term ‘human rights’ lacks a set definition. It is commonly accepted that individuals and certain groups are bearers of human rights (rights-holders), while the state (duty-bearer) is the prime organ that can protect and/or violate human rights.

Cranston describes it as ‘A human right by definition is a universal moral right, something which all men, everywhere, at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human being simply because he is human’ (Cranston, 1962).

The United Nations Office of the High Commissioner for Human Rights defines humans rights as ‘rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status’[1]. We are all equally entitled to our human rights without discrimination.

The main features of human rights have been stated in Article 5 of Vienna Declaration and Programme of Action 1993: ‘All human rights are universal, indivisible, interdependent and interrelated’[2].

The primary aspect of human rights is its universality; it is a right that held by all people equally regardless of their status simply by virtue of being human. Being human is an inalterable fact of nature (Donnelly, 2007). The principle of universality applies regardless of social status or any other considerations or exceptions and universality strongly implies non-discrimination. However, the principle of universality sometimes challenged as it thought to impose Western values upon countries that do not share the same values. The challenge to universality lies with the selective application of the set of rights in by some governments whereby the national laws align with some rights within the human rights canon but not the others. Their argument is that certain human rights are not applicable to certain societies. (Winston, 1993). However, there is a large body of research showing that most societies and cultures practiced human rights throughout their history (Donnelly, 2007). At the core of this argument is confusion between human rights values such as justice and fairness and practices or actions needed to realise these values. It would be fair to say that there is universality of values across different cultures but this universality would be limited when considered against legal norms set by various states.

The other element of human rights is their inalienability. The rights cannot be given or taken away by any power of law or authority. More, the right-holder cannot surrender their rights or give them away.

Human rights are also interdependent and interrelated. There is a correlation between one set of rights and another and they cannot be considered in isolation as the concept of indivisibility applies to the entire system or rights. At the same time, no human right is absolute and sometimes rights have to be balanced against each other. There are few arguments for interdependence of human rights, such as one developed by Henry Shue. In his book ‘Basic Rights’ Shue argues that basic human rights to security, subsistence, liberty and rights that protect an individual from torture and harm are rights whose enjoyment is necessary to the enjoyment of all other human rights, both basic and non-basic. He writes: ‘When a right is genuinely basic, any attempt to enjoy any other right by sacrificing the basic right would be quite literally self-defeating, cutting the ground from beneath itself’ (Shue, H. Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy, 1980 cited in Macklem, 2015).

Human rights can be classified in a number of different ways. Most sources split them into two groups: civil and political rights and economic, social and cultural rights.

Civil and political rights are considered first generation rights and uphold the freedom of the individual before the law and guarantee free participation in civil, economic, and political society, including right to life, liberty, and personal security the right to speech and expression; Civil and political rights are viewed as fundamental human rights. The state has a duty and responsibility to uphold these rights (they have been called ‘negative rights’ by virtue of absence of violation that is required to uphold them).

Social, economic and cultural rights (second generation rights recognised after World War II) include such rights as the right to a family; the right to education; the right to health; the right to work and the right to social security; right to cultural practices; right to speak own language. The protection of these rights supports the development of the individual’s potential and has an equality aspect to them. The social, economic, and cultural rights are often considered ‘positive rights’, something that the states should aspire to and the governments to achieve through progressive realisation as such actions require financial and other resources.

French jurist and director of UNESCO’s Division of Human Rights and Peace Karel Vasak also describes a third category of rights (so called Third generation rights), which to date has no legal or political recognition – solidarity rights. Solidarity rights include the right to peace and self-determination, the right to the benefits of shared natural resources, right to clean environment. Most of these rights are transnational and they deal with the redistribution of wealth between nations. Vasak in his well-known essay titled ‘A 30-year Struggle. The sustained efforts to give force of law to the Universal Declaration of Human Rights’ writes: ‘Since these rights reflect a certain conception of community life, they can only be implemented by the combined efforts of everyone: individuals, states and other bodies, as well as public and private institutions’[3]. In Vasak’s opinion, the solidarity rights were important because it shifted the emphasis from individualistic rights, which promote a culture of individualism, more towards social cohesion. Solidarity rights also seek to address the problems which increasingly can only be addressed through cooperation of the states at the global level.

Another feature of human rights can be described as correlation between human rights as both freedoms and duties. Article 29 of the Universal Declaration states, in its first clause, that ‘Everyone has duties to the community in which alone the free and full development of his personality is possible’[4]. This means that every citizen can exercise their rights but with that comes responsibility to support others in exercising of their rights. Only then the community can achieve its full developmental potential. The theory behind the relationship between the rights and duties was developed by the American legal philosopher Wesley Hohfeld (1879–1918)[5] who postulated that rights have a requirement for either action or inaction and give raise to correlative duties. Some of his thinking is reflected in human rights theory although Hohfeld’s argument lies in the context of legal rights rather than moral (Hohfeld, 1913). The concept of duties in the modern human rights framework does not carry any legal meaning as it would imply that exercising human rights can be contingent on performing certain duties and potentially can erode the protection of human rights.

So in conclusion, human rights can be described and classified in an array of different ways depending on which source or concept the term ‘right’ arises from. The term right can be associated with the set of moral values as in natural law and therefore have no legal implications. The term right can also refer to the laws described in constitutions or treaties, some of them legally enforceable. The issue is that the legal rights can be subjected to change or can be withdrawn by the authority of the state. However, there is a nearly universal presumption that certain core values such as dignity and equality are inherent to human nature and therefor there is a moral basis for an individual to hold a set of rights by the virtue of being human. The positive aspect of this belief is that it is difficult to challenge or take it away through any legal process because it is just that – a belief or a subscription to particular set of moral values, arising from the nature of being human.

References:

Bartosz Wojciechowski, Tomasz Bekrycht, Karolina M. Cern. (2017). The Principle of Eqiality as Fundamental Norm in Law and Political Phiosophy. Łódź: University of Łódź.
Cranston, M. (1962). What Are Human Rights? New York: Basic Books Inc.
Donnelly, J. (2007). The Relative Universality of Human Rights. Human Rights Quarterly, pp. 281-306.
Hobbes, T. (1651). Leviathan or the Matter, Forme, & Power of a Common-wealth Ecclesiasticall and Civill. London: Andrew Crooke, at the Green Dragon in St. Pauls Church-yard.
Hohfeld, W. N. (1913). Fundamental Legal Conceptions as Applied in Judicial Reasoning. Yale Law Journal, 16-59.
Lisska, A. J. (2013). Human Rights Theory Rooted In The Writings of Thomas Aquinas. Diametros, 134-152.
Locke, J. (1823). Two Treatises of Government; from The Works of John Locke. Vol V. London: Printed for Thomas Tegg; W. Sharpe and Son;.
Macklem, P. (2015). Human rights in international law: three generations or one? London Review of International Law, 61 – 92.
Rousseau, J.-J. (1762). The Social Contract. Adelaide: eBooks@Adelaide, University of Adelaide, South Australia.
Syse, H. (2004). Ethics and Natural Law in Eric Voegelin’s Anamnesis. In H. Syse, Natural Law, Religion, and Rights. St. Augustine’s Press.
Winston, M. E. (1993). Indivisibility and Interdependence of Human Rights. Indivisibility and Interdependence of Human Rights, Public Lecture. Lincoln: University of Nebraska.