Historical Development of Human Rights

The history of human rights covers thousands of years and draws upon religious, cultural, philosophical and legal developments throughout the recorded history. It seems that the concept of human rights is as old as the civilization. This is evident from the fact that almost at all stages of mankind there have been a human rights documents in one form or the other in existence. Several ancient documents and later religious and philosophies included a variety of concepts that may be considered to be human rights. Notable among such documents are the Edicts of Ashoka issued by Ashoka the Great of India between 272-231 BC and the Constitution of Medina of 622 AD, drafted by Muhammad to mark a formal agreement between all of the significant tribes and families of Yathrib (later known as Medina). However, the idea for the protection of human rights grew after the tragic experiences of the two world wars. Prior to the world war, there was not much codification done either at the national or the international levels for the protection and implementation of human rights.

This paper seeks to analyse the concept and approaches of human rights and its development even before the Greek times. In this regard, the period has been classified as pre world wars and post war eras. The latter has been further divided into normative foundation, institution building and stage of implementation. Several important documents like Magna Carta, French Declaration of the Rights of Man, UDHR, ICCPR etc. and a brief discussion of various approaches to human rights have been mentioned.

Concept Of Human Rights
Human rights are the rights a person has simply because he or she is a human being. Human rights are held by all persons equally, universally, and forever. “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”[1] Kant said that human beings have an intrinsic value absent in inanimate objects. To violate a human right would therefore be a failure to recognize the worth of human life.[2] Human right is a concept that has been constantly evolving throughout human history. They have been intricately tied to the laws, customs and religions throughout the ages. Most societies have had traditions similar to the "golden rule" of "Do unto others as you would have them do unto you." The Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran (Koran), and the Analects of Confucius are five of the oldest written sources which address questions of people’s duties, rights, and responsibilities.

Different counties ensure these rights in different way. In India they are contained in the Constitution as fundamental rights, i.e. they are guaranteed statutorily. In the UK they are available through precedence, various elements having been laid down by the courts through case law. In addition, international law and conventions also provide certain safeguards.

Human rights refer to the "basic rights and freedoms to which all humans are entitled." Examples of rights and freedoms which have come to be commonly thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education. “A human right 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 simply because he is human.”[3] Human rights are inalienable: you cannot lose these rights any more than you can cease being a human being. Human rights are indivisible: you cannot be denied a right because it is "less important" or "non-essential." Human rights are interdependent: all human rights are part of a complementary framework. For example, your ability to participate in your government is directly affected by your right to express yourself, to get an education, and even to obtain the necessities of life.

Another definition for human rights is those basic standards without which people cannot live in dignity. To violate someone's human rights is to treat that person as though he or she was not a human being. To advocate human rights is to demand that the human dignity of all people be respected.

In claiming these human rights, everyone also accepts the responsibility not to infringe on the rights of others and to support those whose rights are abused or denied.

Basic Requirements for Human Rights - Any society that is to protect human rights must have the following characteristics -
1. A de jure or free state in which the right to self-determination and rule of law exist.
2. A legal system for the protection of human rights.
3. Effective organized (existing within the framework of the state) or unorganized guarantees.

Classification - Human rights have been divided into three categories:
1. First generation rights which include civil and political rights.
2. Second generation rights such as economic, social and cultural rights.
3. Third generation rights such as the right of self-determination and the right to participate in the benefits from mankind’s common heritage.

Human rights may be either positive or negative. An example of the former is the right to a fair trial and an example of the latter is the right not to be tortured.

Approaches To Human Rights
The Natural Law Approach – This theory focuses on a natural law that is higher than positive law (law created by man) and to which the latter must conform. Natural law is based on equality. However since it employs means such as the revelation of divine will, transcendental cognition and participation in natural reason, none of its claims can be conclusively confirmed or rejected.

The Historical Approach – This approach views human rights as a function of culture and environment and inculcates space and time factors as well. However, it has three distinct drawbacks. Firstly, it sometimes does not consider the individual as an entity outside of the community. Secondly, it gives more importance to language, religion etc. than the actual views of people. Thirdly, by focusing on the differences between societies, it undermines the universality of human rights.

The Positivist Approach – This approach sees law as enacted by an authoritative sovereign and deriving sanction from coercion. The main disadvantage here is laws would not stem from the will of the people but from that of the sovereign. Obedience would be more easily obtained if sanction came not from force but from laws being based in the values of society. Positivists also see only nations and not individuals as subject to international law, a view that would render ineffective a number of instruments available today.

The Marxist Approach – This view comes from the writings of Karl Marx in the context of the 19th century industrial revolution. It posits that in capitalist societies, human rights do not exist. They only come into being in a classless society where there is public ownership of the means of production. This approach too suffers from defects one of which is that it views the development of human rights in a communist society as inevitable and not problematic.

The Social Science Approach – This approach locates human rights in the context of larger social processes, dwelling on the community’s role in shaping principles. It uses scientific and empirical methods, models and techniques to estimate the degree of success/failure of human rights. It fails however, to provide a clear link between social processes and the law.

Human Rights In Pre-World War Era
The roots for the protection of the rights of a man may be traced as far back as in the Babylonian Laws[8]. The development of human rights may be divided into the following periods prior to the two world wars :

Prior to Greek Period – One of the first examples of a codification of laws that contain references to individual rights is the tablet of Hammurabi. The tablet was created by the Sumerian king Hammurabi about 4000 years ago. While considered barbaric by today's standards, the system of 282 laws created a precedent for a legal system. This kind of precedent and legally binding document protects the people from arbitrary prosecution and punishment. The problems with Hammurabi's code were mostly due to its cause and effect nature, it held no protection on more abstract ideas such as race, religion, beliefs, and individual freedoms.

Greek Period – It was in ancient Greece where the concept of human rights began to take a greater meaning than the prevention of arbitrary persecution. Greeks were the first profounder of natural law principles. They gave a conception of universal law for all mankind under which all men are equal and which is binding on all people. Human rights became synonymous with natural rights, rights that spring from natural law. According to the Greek tradition of Socrates and Plato, natural law is law that reflects the natural order of the universe, essentially the will of the gods who control nature. A classic example of this occurs in Greek literature, when Creon reproaches Antigone for defying his command to not bury her dead brother, and she replies that she acted under the laws of the gods

Despite this principle, there are fundamental differences between human rights today and natural rights of the past. For example, it was seen as perfectly natural to keep slaves, and such a practice goes counter to the ideas of freedom and equality that we associate with human rights today.

Roman Period – This idea of natural rights continued in ancient Rome, where the Roman jurist Ulpian believed that natural rights belonged to every person, whether they were a Roman citizen or not. They classified the law of Rome into three broad categories namely; Jus Civile, Jus Genitum and Jus Naturale. The first two were the law of the land based on the third concept (Jus Naturale) which embody the principles of natural law, though not enforceable in the court directly.

The origin of the concept of human rights are usually agreed to be formed in the Greco-Roman natural law doctrines of “Stoicism”, which held that a universal force pervades all creation and that human conduct should therefore be judged according to the law of nature

Christian Period – The idea of natural law continue even after Roman period which forwarded the cause of human rights. However, natural law, at this stage was considered as will of God revealed to men by Holy Scriptures. According to Christian father all laws, government and property were the product of sin and so human laws contrary to law of God were to be discarded and ignored. Church as the exponent of divine law could override the State.

Medieval Age – Human Rights were further promoted in the form of natural law in the middle ages. It was St. Thomas Aquinas who made a classic attempt to harmonise the teachings of the Church with those of natural laws. He distinguished between four kinds of law in his “Summa Theology”. He observed that the law of nature is the discovery of eternal law through reason and reason is the manifestation of religion.

Social Contractualist – The next fundamental philosophy of human rights arose from the idea of positive law. Thomas Hobbes (1588-1679) saw natural law as being very vague and hollow and too open to vast differences of interpretation. John Locke has often been seen as the seminal figure of the development of human rights thinking. He claimed that every man had a right to life, liberty and property. These ideas were based on the idea of rational, equal men and the natural rights provided by God. Governments that continuously violated these rights became tyrannies and lost their legitimacy to rule. The Lockean principles became to fuel the revolutions of the century to come. The concept of natural rights was pervasive in America. The Americans saw the English rule as tyranny that had lost its legitimacy by violating their rights. The American Declaration of Independence certainly reflects Lockean ideals, as it claims it is self-evident that all men (sic) are created equal and thus have a right to life, liberty and the pursuit of happiness. In the Bill of Rights, the set of amendments to the US constitution, these rights are justified by appeal to natural rights grounded in the rights of God.

In the middle ages and later the renaissance, the decline in power of the church led society to place more of an emphasis on the individual, which in turn caused the shift away from feudal and monarchist societies, letting individual expression flourish.

Positivist – After the decline of natural law conception of human rights, positive law evolved and legislation became the main source of human rights. The Prominent writers in this regard are Austin and Bentham. Under positive law, instead of human rights being absolute, they can be given, taken away, and modified by a society to suit its needs. Jeremy Bentham sums up the essence of the positivist view as : Right is a child of law; from real laws come real rights, but from imaginary law, from "laws of nature," come imaginary rights….Natural rights is simple nonsense.

This transfer of abstract ideas regarding human rights and their relation to the will of nature into concrete laws is exemplified best by various legal documents that specifically described these rights in detail:

British Magna Carta (1215) - The English Magna Carta of 1215 granted by King John is very much significant in the development of human rights. The overreaching theme of Magna Carta was protection against arbitrary acts by the King. Land and Property could no longer be seized, judges had to know and respect laws, taxes could not be imposed without common council. The Carta also introduced the concept of jury trial in Clause 39, which protect against arbitrary arrest and imprisonment. Thus, Carta set forth the principle that the power of king was not absolute. The Carta was later converted to Bill of Rights in 1689.

French Declaration of the Rights of Man (1789)[17] - The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; in order that the acts of the legislative power, as well as those of the executive power, may be compared at any moment with the objects and purposes of all political institutions and may thus be more respected, and, lastly, in order that the grievances of the citizens, based hereafter upon simple and incontestable principles, shall tend to the maintenance of the constitution and redound to the happiness of all. Therefore the National Assembly recognizes and proclaims, in the presence and under the auspices of the Supreme Being. Under the Declaration, rights of men and citizens includes guarantee of equality, liberty, free speech and laid down that law is the expression of the general will.

These apart, there are various other documentsalso reflected the ideas of human rights which helps in its development. In fact, since the beginning of the 19th century it was recognised in the constitutional law o many States that human beings possess certain rights. Worth of human personality began to be realised.