People talk a lot about ‘rights’ these days. The language of rights is powerful because it implies a minimum standard that marks a boundary between what is acceptable and unacceptable in society.
But people have been talking about rights in one way or another since at least the time of the Ancient Greeks. We can trace philosophical dialogues about the nature of rights back to at least 500 BC.
The first discussions about people’s rights centred on how to explain why a right should exist at all. Those debates continue to shape contemporary understandings of rights.
Some people think that a person only has a right if it is recognised by a state legal system that is, if it is a ‘positive right’. Jeremy Bentham is a famous philosopher associated with this view. However, the experience of Nazi rule in Germany between 1932 and the end of World War II – all of which took place in a framework of law – undermined the belief that positive law is the only law which ought to be obeyed.
Other thinkers about rights recognise moral rights that arise because of a higher principle or source of law than the law made by a state. Some of these higher sources of authority have included:
¢ the law of the gods. An often cited example of this is Sophocles’s 5th century BC tragedy, Antigone, in which Antigone buries her brother in defiance of the law of the King of Thebes. She appeals to ‘the immutable, unwritten laws of heaven’ in her defence.
¢ common human nature. The Ancient Greek philosophers known as the Stoics developed this school of thought in the period between 300 – 200 BC. They believed in the universality of a law ‘in accordance with nature’ that applied to every person, and which is unchangeable, eternal and based on common human nature. This became known as ‘natural law’ and was codified by the Ancient Romans. It proved to be a resilient concept and by the 17th century, the idea of a universally valid system of natural law was being used to found theories of ‘natural rights’, most commonly associated with the English philosophers Thomas Hobbes and John Locke.
‘Natural rights’, ‘moral rights’ or ‘universal rights’ were understood to belong to a person by reason of nature, because they are a human being, not because of their citizenship or particular status. These rights were said to confer unlimited freedom that a person voluntarily limited by agreeing to be governed.
Some of the most important struggles about human rights have been about the extent to which these natural rights could be given up. Landmark documents such as the British Magna Carta (1215) and Bill of Rights (1689), the US Declaration of Independence (1776) and Bill of Rights (1789), and the French Declaration of the Rights of Man and of Citizens (1789) reflect early attempts to describe the limits of legitimate incursion upon a person’s natural rights by government.
¢ God. The concept of natural law was easily taken up by Christian theologians, like St Augustine and Saint Thomas Aquinas, who transferred the idea of one, eternal law to the universal law of God that stood above any human laws.
These philosophical traditions and debates are the precursors to the modern human rights movement.
The modern conception of human rights owes most to the natural law tradition, and it could be said that the natural law tradition has been modified by the more modern belief that individual people, by virtue of their humanity, have rights that ought to be respected in any civilised society. In the wake of World War II, there was a shared determination to secure peace through international cooperation. The United Nations was born of this ambition in 1945.
The founding document of the United Nations is the United Nations Charter which explicitly states in its preamble that:
We the peoples of the United Nations determined to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women do establish an international organisation to be known as the United Nations.
The United Nations Charter at Article 1(3) goes on to describe one of the purposes of the United Nations to be:
To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.
Human rights? Fundamental freedoms? Dignity and worth of the human person? What does it all actually mean?
The United Nations began to provide a more detailed description of what these concepts mean, whilst still in the long shadow of World War II. The Universal Declaration of Human Rights was drafted under the auspices of the United Nations and agreed to by the General Assembly of the United Nations in 1948. When it was first drafted, it was a roadmap or a statement of human rights standards, rather than an enforceable set of laws. However, it has come to be regarded as enforceable by many international legal specialists because of the wide acceptance by countries around the world of the principles contained within it.
The Universal Declaration of Human Rights was strengthened and fleshed out, after lengthy negotiations, by the development of two legally binding treaties which both came into effect in 1966, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Cultural and Social Rights (ICESCR).
Together, these documents are known as the International Bill of Rights, and they describe a set of standards that are understood by the community of nations to belong to each person, and to be ultimately, the responsibility of each government to protect and to promote.
The United Nations has continued to sponsor the evolution of human rights standards, and today, there are a number of human rights treaties that deal with children’s rights, women’s rights, and the right to be free from torture or cruel, inhuman or degrading treatment and to be free from racial discrimination.
Australia is one of approximately 150 countries that have committed themselves to both the ICCPR and the ICESCR. That means that the Australian Government has agreed to protect and promote the rights described in the International Bill of Rights. It means that Australians should have the full recognition, protection and enjoyment of human rights that include:
¢ To be free from discrimination on a variety of bases, including race, sex, religion, political and other opinion, national or social origin or other status, including Indigeneity, disability, age or sexuality;
¢ To participate in the political process, including the right to vote;
¢ To liberty and security of the person;
¢ To peaceful protest;
¢ To practice your own culture;
¢ To freedom of expression and association, including joining a trade union;
¢ To adequate standards of living, including adequate food, clothing and housing;
¢ To just and favourable conditions of work;
¢ To the highest possible standards of physical and mental health;
¢ To education.
The national launch of New Matilda‘s Human Rights Act Campaign will take place at the Sydney Town Hall on 5 October 2005 at 6.30pm. To register to attend, click here.
Public Interest Advocacy Centre, Protecting Human Rights in Australia: A Community Education Kit (www.piac.asn.au/publications/hrkit.html).
Nick O’Neill, Simon Rice, Roger Douglas, ‘Chapter One: From Natural Law to Human Rights’ in Retreat from Injustice: Human Rights Law in Australia (Sydney: The Federation Press, 2004).
Peter Bailey, Bringing Human Rights to Life (Sydney: The Federation Press, 1993).
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