HISTORICAL EVOLUTION AND PHILOSOPHICAL FOUNDATION OF THE CONCEPT OF HUMAN RIGHTS.
Overtime, rights have been agitated for. Then, they were not referred to as rights in the real sense of the word. The concept of human rights has its philosophical ancestry in the natural law school. The foundation of human rights is therefore natural law and the subsequent concept of natural rights.
The doctrine of natural rights is traceable to the medieval and ancient times when it was then fashioned as natural law. As a result of the close relationship of these concepts, the expression “human rights” had been used synonymously with natural law and natural rights.
Natural law is predicated on the assertion that there are objective moral principles which depend on upon the nature of the universe and which can be discovered by reason. In other words, the theory of natural law is based on the reasoning that the rules of human conduct are deductions from the nature of man as they reveal themselves in reason.
The theory of natural law draws its inspiration from nature. It is predicated on the assumption that there is a law of nature according to which tenets and principles all things, including man himself, ought to behave. As human nature is identical in all human beings and does not vary, its precepts have universal and immutable validity, notwithstanding the diversity of individual conditions, historical and geographical environments, civilizations and cultures.
In considering the historical evolution of human rights, the periods must be emphasized. This however is a rough periodization and should not be viewed as a perfect chronology of events. They are;
- THE PERIOD OF THE GREEK PHILOSOPHERS
- THE PERIOD OF NATURAL LAW THEORISTS
- THE RENAISSANCE OR ENLIGHTENMENT OR REFORMATION PERIOD
- THE PERIOD OF THE GREAT HUMAN RIGHTS DOCUMENTS
- THE PERIOD OF THE INTERNALISATION OF HUMAN RIGHTS
The Period of the Greek Philosophers
This period encompasses the eras of Socrates, Plato and Aristotle. SOCRATES was a philosopher in the 5th and 4th century B.C. He lived in the Greek city state of Athens. He was a man of ideas, reasoning and a public speaker per excellence. He was the first natural law philosopher. During his period there was dictatorship in Athens: he held liberal views and was (as a result) victimized.
Socrates was on the hit list of the military dictatorship in Athens and they caught up with him and consequently he was charged with treason and propounding of heresy and sedition. After Sparta defeated Athens there was a need for a strong leadership and the government was recognized.
Socrates was eventually tried by a military tribunal and he was later convicted. His punishment was to drink “hemlock” a type of poison, until he died.
Socrates says nature is primary i.e. the order of things God created is primary, fundamental and lasting. But law is dynamic and susceptible to change. Human law will change as personalities evolve.
In essence, nature has its own set of laws that are permanent. He made three propositions;
He said natural law is wise while human law is based on expediency, that is, based on whims and caprices.
Nature is primary while law is secondary and derivative.
Nature created man to be equal while law imposed inequality. Human law applies to man whether good or bad. The laws of nature are norms and it is obligatory, there are no compulsions.
PLATO was a very prolific writer who wrote so many books and dialogues including Timaeus, The Statesman and the Republic. He was Socrates’ student. Like his master, Socrates, he believed in and preached natural law but with noticeable differences. Plato put forward the doctrine of individualism as the centre-piece of human rights, while Socrates believed in an agglomeration of families as making up the state.
ARISTOTLE was Plato’s student and was vast in many disciplines; biology, astrology etc. He was also a natural law philosopher and writer. He wrote the books; Ethics and Philosophy. The central thesis of Aristotle’s works and writings was that natural law (the law of God) is better than the laws of man. Hence, he postulated that divine or natural law is better than positive law.
The Period of the Natural Law Theorists
Natural law theorists transcend about seven centuries. This period was comprised of mainly Catholics and they include: St. Thomas Aquinas, St. Ambrose, and St. Augustine to name a few.
AMBROSE was the Bishop of Rome in the 5th century. He saw a young man lost in bigotry and reckless abandon, but he discovered that the young man was very smart, intelligent and good at poetry. That man was St. Augustine and Ambrose decided to bring him out of the debauchery into the catholic faith.
ST. AUGUSTINE was born in Lumidia which is on the coast of Africa. He was very intelligent and made strides in the intellectual field, despite his debauchery. He left Lumidia and wandered to Rome where St. Ambrose found him.
He wrote a number of books including, Confessions, City of God, amongst others. In City of God, he made a few illustrations. According to St. Augustine, the City of God is the city where natural law holds sway. It is a city where there is serenity, law and order. He then contrasted it with the city of man i.e. Earth where human law holds sway. In his view, Human law is based on ideas, expedience and selfishness.
Part of the Human Rights thesis of St. Augustine was to talk about racial discrimination and human rights. He was basically the first person to discuss racial profiling under human rights. He was part of the first people to mention racial profiling under human rights.
THOMAS AQUINAS was a catholic priest who lived in the 13th Century A.D. He was also a natural law philosopher. Thus based on the works of St. Ambrose, St. Augustine and St. Thomas Aquinas, human rights became the pillar of Catholicism and the liberation theology.
FATHER ROBERO another outstanding catholic priest who joined the Brazilians in their fight against military dictatorship. He espoused violence as a tool of achieving freedom. He believed in liberation theology i.e. violence as a tool in acquiring freedom.
HUGO GROTIUS, the acclaimed father of international law, used natural law as the vehicle to propound his international law principles. International law had a principle that the world is “terra nullius” i.e. “no man’s land”. Grotius deployed natural law to debunk the idea of “terra nullius”. He said that if God created all men equal, then all men are equal and thus there is no such thing as “no man’s land”. He said each state had its rights to its own land and to use its own natural resources.
The Reformation/Renaissance/Age of Enlightenment
This fell within the 17th century. The medieval period or the period of the monarchical era in Europe preceded this period. During the medieval period, there was wanton abuse of human rights because the monarchy was an abolitionist/totalitarian regime. Thus, the renaissance was a response to this prevalent abuse by the monarchy.
THOMAS HOBBES in his book Leviathan (1651) considered the issue of abuse of power by the monarchy with his book via making a metaphor of the title of the book. He emphasized that life is brutish, nasty and short.
The panacea was offered by JOHN LOCKE in his book Civil Government (1960) where he emphasized on the need for a republican system of governmentBARON DE MONTESQUIEU in his book L’ESPIRIT DE LOIS (THE SPIRIT OF LAW 1721) considered the effectiveness of separation of powers between different organs or government whereby each would act as a check and balance to the other.
JEAN JACQUES ROUSSEAU in his popular book Social Contract emphasized that the relationship between the citizen and the state is contractual i.e. an agreement between equals. He said that citizens have agreed to relinquish some of their rights to the state authority in exchange for their protection/security by the state. The social contract theory presaged and laid out the background for the documentation of human rights and constitutionalism.
The Period of the Great Human Rights Documents
The period of documentation of human rights when it was realized that the concept of human rights was beyond conjecture and that it should be documented for posterity and thus creating a point of reference. This period is not within an exact time span but it is in chronological continuation between various centuries.
The Magna Carta of 1215 was the first documentation of human rights and was in the medieval period. King John of England was instrumental in the coming alive of the Magna Carta and it was negotiated over five days in Runnymede. It was a product of demands and compromises between the dissident Barons and King John.
The Barons constituted the buffer class. There is clear evidence that this period of documentation did not just begin after the renaissance but had been on and would still be on continuously. Before 1215, the Barons (in King John’s kingdom) turned against the king and aligned with the masses or proletariats and waylaid him at Runinely where he signed the Magna Carta, granting the people some rights.
The rights were however not granted to all. They were concessions which King John made to his barons – that is, the Lords, the Knights and other land owners. The Magna Carta however did begin the process of granting certain rights by the King to his subjects.
The importance of the charter in the history of liberty lay less in its individual provisions than for the principle that the power of the King (or government) is subject to the laws of the land and the voice of the subjects.
The English Bill of Rights 1689 : A bill of rights is a section of a constitution that talks about the rights of individuals vis-à-vis the state. The Bill of Rights (U.K) is a statue passed by convention parliament of England in December 1689 as part of the Revolution settlement for declaring the rights and liberties of the subject and settling the succession to the crown. Through the Glorious Revolution of 1688 the people of Britain removed another absolutist monarch from the throne. Parliament then installed a monarch, William of Orange, who acceded to its Declaration of rights. The Declaration in due course became the basis for the bill of rights which settled the “religion, laws and liberties of the kingdom”, in order that the future might not be in danger of again being subverted.
The American Declaration of Independence 1776 was presaged by the American war of independence and they developed their own bill of rights in 1778/1779.
The French Declaration of Rights of Man and the Citizen was presaged by the French revolution. The Bastille is the symbol of the French revolution. The proletariats stormed the Bastille and took over power from the government. The worldwide trend of reducing human rights into writing has gone through the hierarchy.
Internalization of Human Rights
The active involvement of the international community in the promotion and protection of human rights is what is known as the internalization of human rights. Until the United Nations Charter of 1945, international law did not expressly recognize the human rights of the individual despite developments in that direction.
Among the early developments in the international recognition of human rights were the conclusion of treaties to protect religious freedom and treaties to ban slave trade.
Another impetus to the evolution of international human rights law was the intervention of the states, through international legal processes, seeking to secure human rights for the inhabitants of other states.
The Treaty of Versailles 1919 that ended the First World War further laid the foundation for the internalization of certain human rights. The peace treaties guaranteed to the minorities, “full and complete protection of life and liberty without distinction at to birth, nationality, language, race or religion”.
Other historical factors that led to the internationalization of human rights include the provision of minimum standards for labor under the supervision of the international labor organization and the mandate system for the colonies of the defeated powers in the First World War.
The express recognition of human rights by international law began in1945 after the end of the Second World War. The victorious allies were determined to introduce into international law, new concepts designed to make the recurrence of wars less probable.
It was reasoned that once human rights are recognized and protected all over the world, democracy will be secure and the probability of war and widespread violations of human rights will be remote.
The most important landmark in the internalization of human rights is the United Nations Charter of 1945 following the Second World War. It ushered in a new international order of human rights which laid to rest the dogma that how a state treats its own citizens was a matter of domestic and now international concern. It was the coming together of the international community to ensure peaceful co-existence among themselves, thus it was not a human rights document per se. It is tied to human rights by its history, coming so close after the mass murder of the Jews by Adolf Hitler.
The Universal Declaration of Human Rights represents a common statement of goals and aspirations by the world community – a vision of the world as the international community would want it to become. It is an authoritative definition of human rights, setting out the principles and norms for securing respect for the rights of man everywhere in the world.
Though the UDHR at the time of adoption did not impose legally enforceable obligations on member states but was only symbolic and represented aspirations to which member states aimed to attain, it is now being conceived as forming part of customary international law, binding all states and not just the members of the UN.
It took the world 18 more years after the UDHR to prepare and adopt other bills of rights. Ideological and political differences – human rights versus national sovereignty, individual liberty versus communal needs – prevented a consensus. The dispute revolved around the question: whether economic, social and cultural interest should be recognized as rights at par with the civil and political rights.
The capitalist countries – (U.S and her allies) were opposed to the uplifting of the status of economic, social and cultural rights, to a position of equality with the civil and political rights. On the other hand, the communist countries – the former Soviet Union and her allies – held contrary position, and were supported by the newly independent states from the third world.
To resolve the stalemate, the drafters agreed to prepare two covenants, one dealing with civil and political rights while the other one would deal with economic, social and cultural rights, thus giving states the option to ratify either or both of them.
Consequently, on 16th December 1966, the International Covenant on Economic, Social and Cultural Rights (ICESR) and the International Covenant on Civil and Political Rights (ICCPR) were adopted. This document came into existence as a result of “ideological polarism”
The UDHR and the ICESR and ICCPR (the two covenants) constitute the International Bill of Rights.
Apart from the human rights treaties and declarations that have concluded under the auspices of the UN, three regional conventions; The European Convention on Human Rights and Fundamental Freedoms (1950), The Inter-American Human Rights Conventions (1969) and The African Charter on Human and People’s Rights (1981) guarantee human rights in their respective regions.
The human rights treaties and declarations concluded at the UN and regional levels constitute the international law of human rights. Through these multi-lateral treaties, sovereign states consented to be bound by the obligation to respect and secure the human rights specified in the treaties within their own territories, for all individuals over whom they have jurisdiction, including both citizens and aliens.
According to Professor Akin Oyebode, what the international protection of human rights implies is that it enables an aggrieved person to make demands on his state of nationality far beyond what the domestic law provides based on internationally prescribed minimum standards.
A law (including human rights law), whether international or domestic, which does not correspond to justice cannot be binding in conscience. Such a law lacks moral legitimacy and its enforcement involves a violation of human dignity and rights. This is the thesis of natural law.
Professor Ben Nwabueze observed that no society in which morality and religion are absent can ever attain and maintain liberty, democracy and justice. Liberty, democracy and justice are actually morality based values.
It has thus been acknowledged that although the concept of human rights is a product of the UN Charter amplified by the UDHR, it has been influenced by traditional concept of natural rights.
Sources of Human Rights
-The 1999 Constitution, Federal Republic Nigeria (as amended):
The fundamental human rights in Nigeria are codified in Chapter IV of the Constitution. However, the entire constitution itself is regarded as a Human Rights document and human rights also exist in other sections of the documents.
- Federal Laws: There are federal laws governing all aspects of human rights like health, education, child rights, economic and social rights etc. An example is the Criminal Code Act.
- State Laws: Also, any state law touching on any aspect of human rights is a source of human rights. For example, LASEPA.
- Local Government Laws/Bye-Laws
Characteristics of Human Rights
The most important characteristics of human rights have been listed as follows:
1. Human rights are founded as respect for the dignity and worth of each person.
2. Human rights are universal, meaning that they are applied equally and without discrimination to all people.
3. Human rights are inalienable in that no one can have his or her human rights taken away other than in specific situations.
4. Human rights are indivisible, interrelated and interdependent, for the reason that it is insufficient to respect some human rights and not others. In practice, the violation of one right will often affect the respect of several other rights.All human rights should therefore be seen as having equal importance and of being equally essential to respect for the dignity and worth of every person.