Chapter 2: The Historical Background of the Idea of Human Rights

Introduction

Throughout the history of humanity, people have fought for rights, in addition to having duties and responsibilities in their society. Societies have set several rules for themselves in order to regulate their lives. And these rules are questioned by philosophers according to their compliance with a number of ethical and political concepts, such as the concept of justice.

The idea of human rights did not appear until 1789. After the French Revolution, the idea of human rights first emerged in the Declaration of the Rights of Man and of the Citizen in 1789. “The idea of ‘rights’ –specifically, ‘human rights’– is of fairly recent vintage. Therefore, there is no explicit mention of ‘rights’ in the works of Plato and Aristotle. What are now called ‘human rights’ were referred to by Enlightenment philosophers such as Locke and Rousseau as ‘natural rights’, and the classical eighteenth-century conception of the ‘Rights of Man’ traces its philosophical lineage to the Scholastic doctrine of natural law, which, in turn, finds its intellectual origins in the thought of Aristotle and the Greek Stoics and in the moral teachings of Judaism and Christianity” (Winston, 1989, 3).

Although the discourse on human rights is probably a modern problem, the idea behind the concept of human rights can be traced back at least as far as ancient philosophy. Therefore, we first need to see some basic concepts as right, justice, law, etc. during the history of thought, starting from the ancient times.

Classical Origins of the Idea of Human Rights

Greek philosophy is a convenient starting point to uncover the origins of human rights. Indeed, we need to look at the history of the concepts of natural law and justice in ancient Greek philosophy, if we want to examine the original beginnings of the idea of human rights. In Ancient Greek philosophy, to distinguish changing things from unchanging ones is considered an important issue. And the law of nature is seen as universal, immutable and eternal a set of regularities or of repeated patterns.

Plato was a follower of Socrates. He stated his political views, namely, his understanding of the justice (dikaiosyne) and the state, in his famous work called Republic. The question of justice or the concept of justice is at the center of his philosophy, especially in his Republic. Plato, who speaks through Socrates in his dialogues, is an advocate of justice as the right order in a city (polis). In his Republic, Plato distinguishes between justice in an individual and in the state, but indeed the justice is seen as a human virtue in both cases (Plato, 1997a, 980).

Aristotle was one of Plato’s students, but his philosophical doctrine is different from Plato’s. “Aristotle’s Nicomachean Ethics starts and ends with political concerns. At the beginning at his work, Aristotle says that the inquiry he is about to begin is ‘sort of politics’; and at the end of the work, he suggests that the reader should complete the study of the humanities by studying different political systems. According to Aristotle, the political and social setting is crucial for the virtue and happiness for the citizens” (Gottlieb, 2009, 191). Therefore, for Aristotle, the polis (city state) is necessary and natural for the good of all citizens, and the state also aims at the happiness of its citizens. Moreover, since human beings are not selfsufficient and they need others in order to be selfsufficient, the state is essential for the realization of one’s own abilities (Gottlieb, 2009, 192).

According to Aristotle, the state is essential not only for the realization of happiness and self-sufficiency, but also for the realization of justice. “Every state is as we see a sort of partnership, and every partnership is formed with a view to some good (since all the actions of all mankind are done with a view to what they think to be good). It is therefore evident that, while all partnerships aim at some good, the partnership that is the most supreme of all and includes all the others does so most of all, and aims at the most supreme of all goods; and this is the partnership entitled the state, the political association” (Aristotle, 1959, 3). He believes that the state is a political union for the good of all. He contrasts it with what is contrary to nature; namely, his aim is to distinguish “between what is natural and what is contrary to nature, that is, between what is natural and what would be merely conventional” (Gottlieb, 2009, 193).

According to the Stoics, nature contains a universal and immutable law and this cosmological law (logos) is divine. Stoics think that the divine law is valid in all aspects of the world, even in the human world. This Stoic understanding is also followed by the Roman Stoics. “The Romans adopted the Greek approach to justice and Roman law developed into the most advanced ancient legal system. The Latin word for justice and law derived from the same root, their semantic field is the same in Greek and Latin (dikaion and jus for right/law; dikaiosyne and justitia for justice). The Roman jus, like the Greek dikaion, was both lawful and the just, the aim of the jurist in each dispute was to serve justice by aiming at the just solution” (Douzinas, 2000, 47). Like Greek’s dikaion, Roman’s jus also refers to all citizens’ civic duties and rights. According to Romans, the just is something which is fair and the just is the object of justice. Therefore, “Aristotelian concepts of legal justice survived and thrived in Rome, where the Stoic ideas of natural law, simplified and transformed by Cicero, were also applied for the first time. As the Greek city-states started dissolving, first in the Macedonian and later in the Roman Empires, the idea of a law common to all imperial subjects, of a jus gentium started to take hold” (Douzinas, 2000, 49). The main interest of the Stoics was not political philosophy, but their reflections on the morality of universal humanity also determined their political philosophy. And they derived all political norms and rules from rational human nature.

Like Plato, the Stoics believed that there were four basic virtues: wisdom, courage, temperance and justice. For Marcus Aurelius, a Stoic thinker, justice was the most important of the four virtues and it was the source of the other three virtues. According to Cicero, justice is the principle which constitutes the bond of the human society and the fundamental bond of the commonwealth. For him, the state (Res Publica) means the property thing of people, namely the state was a community associated with one another by agreement on law. Cicero also considered the natural law (jus naturale) and asserted that law is the highest reason rooted in the nature (Douzinas, 2000, 49). Cicero believes that all humans are bound to the Gods by their reason and that all humans are born equal. Their equality comes from nature or divine law. The laws that are enacted by nature must be good and just, unjust laws do not come from nature. For example, the laws which are enacted and enforced by tyrants are not just. For Cicero, the true law is the law of reason, in accordance with nature known to all, unchangeable and imperishable, it should call men to fulfill their duties by its precepts and deter them from wrongdoing with its prohibitions. He thinks that breaking this law is unholy, amending it is illicit, repealing it is impossible. We cannot give up this law by the order either of senate or of assemblies of people. Also, he added that we do not need to look for anyone to clarify or interpret it. This law is valid everywhere and every time, because this law is eternal, and it binds all people and all ages. According to Cicero, all virtues and human beings are subject to natural law and humans can discover the natural law by their reason.

Therefore, nature is claimed to be the origin of justice. “The law, human institutions, rules and all worldly order proceed from a single source” (Douzinas, 2000, 51). Thus, nature became a moral and political principle which enforces humans to obey its universal law.

The Concept of Religious Justice in Medieval Philosophy

The early Greek philosophers take for granted that nothing comes from nothing. But with the birth of Christianity, it is believed that God created the world from nothing. “Christianity claimed that the world had been created ex nihilo [from nothing] through the free act of God. Nature, the invention of Greek philosophical imagination, was turned into the creation of an all-powerful being” (Douzinas, 2000, 53). Since God was the creator of nature, the source of universal law was sought in God. Medieval philosophy developed under the influence of Christianity discussed the concepts such as law and justice with regards to Christian dogmas. Patristic philosophy (the philosophy of church fathers) used the term ‘natural law’ in sense of divine command. Also, the conception of human in medieval philosophy is different from the conception of Greek philosophy. First, it conceived the human being as a being created by God, unlike in Greek philosophy. Secondly, every individual is born with original sin and the human world is full of sin and injustice.

According to St. Augustine, a Platonist philosopher in the early Middle Ages, the world was brought into existence from nothingness by God who created human, and the earth is not eternal, so the earth has both a beginning and an end, but man was created to be eternal. For Augustine, there is damnation for all men because of the fall of Adam. In this context, Augustine distinguished between the earthly city and the city of God. He thinks that justice can only be fulfilled in the city of God. In accordance with the Platonist distinction between the ideal state and real states, Augustine distinguished between the ideal state and the earthly state. For him, the city of God is the ideal state and it is superior to any earthly state. According to Augustine, for example, the Roman Empire was never a truly just political state, because it was an earthly state and true justice can only be found in the Christian state of God. “Original sin and the fall of man made it impossible for secular law and justice to redeem people from evil” and “justice will always remain a promise that cannot be fulfilled in this life. Justice is a divine attribute which does not belong to this world” (Douzinas, 2000, 55). So, Augustine made the classical theories of justice compatible with Christian dogmas.

Another Medieval philosopher, Thomas Aquinas followed partially the classical theory of justice in his works. Unlike Augustine, Aquinas was an Aristotelian philosopher in many respects. He also followed the Stoic philosophy concerning natural law. Aquinas believed that human dignity and value are innate properties which are validated according to “natural law” (O’Byrne, 2013, 29). According to Aquinas, natural law can be known thanks to divine light and natural reason can understand this divine law, and one can distinguish between good and evil by means of his own reason. Also, there is close similarity between Aquinas’ justice and Aristotle’s conception of general justice. For Aquinas, justice is constituted by a reference to the other person. “The jus as the just outcome is an arrangement of things amongst people that respects, promotes or establish the proportion or equality inherent in them, and these proper relations are observable in the external world” (Douzinas, 2000, 57). In all these respects, Aquinas followed the teachings of Aristotle, but his paramount and original contribution to jurisprudence was the fourfold distinction between eternal, natural, divine and human law with its religious implications (Douzinas, 2000, 57). According to Aquinas, natural law is definite, certain and simple, and its fundamental propositions are immutable owing to the fact that they are formulated by God.

The first philosopher to use the concept of a right (jus) in anything like in the modern sense was William of Ockham, who thought of natural right as personal power to conform the right reason, without an agreement or pact (Winston, 1989, 3). The term jus had been used to in reference with term justice, but William of Ockham used it in reference to the power of individual. That let him to think that individuals have a control over their life, and it was a kind of right to property. According to him, this natural property does not come from an eternal or universal law; it is a basic fact of human life.

The Contractarian Theories in Modern Philosophy

Under the title of contractarian theories, we will introduce some leading thinkers’ conceptions of natural rights. According to thinkers who advocate these theories, natural rights such as freedom and equality are derived from the hypothetical state of nature. Some of the most important contractarian theorists to be introduced here are Thomas Hobbes, John Locke and Jean Jacques Rousseau. According to these thinkers, rights are eternal and inalienable as they are natural.

From Plato to early modernity, philosophy investigated the best polity for human and the teleological reasons of the state and laws. Thomas Hobbes presented a new method for analyzing legal foundations and redefined the traditional juridical concepts of law, right and justice. He is also the founder of the modern tradition of individual rights and the first philosopher to replace fully the concept of justice with the idea of rights (Douzinas, 2000, 69).

Hobbes distinguishes between natural bodies and artificial bodies and claims that while the human being is a natural body, the state is an artificial body. He thinks that the human body is like a natural machine, and that political organization is like an artificial human being (Hobbes, 1998, 7). In his Leviathan, published in 1651, “Hobbes claimed that humans are, essentially, violent and greedy animals and that in their natural state they live in a world of anarchy” (O’Byrne, 2013, 29).

According to Hobbes, men naturally desire freedom and dominion over others and the condition of war amongst them is necessarily consequent of the natural passions of men. Hobbes supposed a hypothetical beginning that he called “state of nature” in order to explain the ontological grounding of state. In Hobbesian philosophy, the state of nature has only one certain meaning. It is natural because the political body (state) is artificial. In the state of nature, there is no government as an authority created by men. And the state of nature is called a state of war, and in such a war every man is against every other man; every man is enemy to every other man (Hobbes, 1998, 84). Consequently, every man tries to secure his own security in the state of war.

On the other hand, John Locke is the leading philosopher of liberalism and as a contractarian philosopher, he is the first philosopher to suggest that there are such things as natural rights; which are our rights by virtue of the fact that we are human (O’Byrne, 2013, 30). Locke’s description of the state of nature is different from that of Hobbes. “John Locke’s political writings are commonly presented as the early manifesto of liberalism and as the opposite of Hobbes’ ‘totalitarianism’” (Douzinas, 2000, 81).

In the state of nature described by Locke, since people have equal rights and these rights are shared by all human beings, all men are not only equal but also free by nature. All humans are equal with respect to the rights they have. These rights are inalienable and cannot be removed by any political authority. In his Second Treatise of Government, published in 1690, Locke used the same methodology as Hobbes, but inverted his predecessor’s conclusions. “Rather than rely upon an image of pre-social human beings as warlike, greedy and violent, and in need of a strong state to ensure security, he claimed that in such a state of nature humans are naturally peaceful, free and mercantile. The state emerges, he claimed, solely out of the occasional need for an independent arbiter in any disputes which may arise over trade or property” (O’Byrne, 2013, 30). Therefore, Locke puts forth an idea of the rights of man against the idea of a strong state. “Locke’s natural rights were threefold: life, liberty, and property; he is thus considered to be the founder modern liberalism” (O’Byrne, 2013, 30).

Another thinker who bases the public sovereignty on the social contract is Rousseau. He did not turn the social contract into submission to sovereign, but turned it into a common agreement, and he left the sovereignty to the will of the people. In his major works, The Social Contract and Discourse on the Origin of Inequality, Rousseau stated his political thoughts with reference to the concepts of freedom and equality. These two concepts, according to him, are fundamental rights which nature provides to people. Therefore, his political theory is based on the concept of natural law. In addition to Hobbes’ and Locke’s fundamental innate rights, such as life, freedom and property, Rousseau also expresses social and economic rights in his theory of social contract. Rousseau thus extended the social contract tradition beyond the individualism of Hobbes and Locke to incorporate the role of community in his work The Social Contract, in which he argued that the community must represent the general will of people (O’Byrne, 2013, 31).

For Rousseau, the first man lived equally, freely and happily in the state of nature, and this freedom and equality continued until the society was established. The emergence of private property has resulted with the end of natural equality, and the state of nature. Because of the rise of natural inequality, the concepts of right (just) and injustice have emerged. The disappearance of natural equality forced people to come together with a contract and to build the civil society. But as soon as society was established by a contract, freedom was completely abolished. Property and inequality are completely reinforced by this agreement. The establishment of a state led to the establishment of other states, and it led to the wars between the states. But, this state of war is against the law of nature, for the inequality is not compatible with natural law, since all human beings are free and equal to each other with respect to the law of nature. It means that all people are born equal and free by nature. But there is no way to return to the state of nature again. Also, Rousseau claimed that no man has the power to alienate his own natural liberty, because they are born as free men; their liberty belongs to them, and no one has the right to dispose of it, except for themselves (Winston, 1989, 4).

Other Contributions to the Concept of Right

According to the German philosopher Immanuel Kant, who described the Enlightenment as the “Age of Reason”, reason is the foundation of all moral actions. For Kantian ethics, humans are autonomous beings and are responsible for their actions. Kantian autonomous subject was universal legislator and its each particular action can be judged by reason or by universal principles. Kant’s Critique of Practical Reason is the foundation of modern jurisprudence (Douzinas, 2000, 191). According to Kant, morality is not grounded in a pre-existing idea of the good or it cannot be driven from an external source, such as the law of nature, contrary to classical views or the contractarian theories. Kant’s ethical principle or moral law commands us to follow universality. The moral actions of an autonomous agent follow the law of the categorical imperative: “So act that the maxim of your will could always hold at the same time as a principle of universal legislation” (Kant, 2002, 45). This law includes autonomy and self-determination and thus it gives subject his freedom.

For Kant, duty and respect for law are equally important for both morality and legality. While moral acts follow the universal law of reason, legality is to obey laws of the state. According to Kant’s theory of state, the social contract is not a historical covenant and “all previous versions of the contract had included references to those characteristics and drives the theorist considered as natural and from which reason drew its principles. For Kant, all such empirical impurities must be removed as methodologically unacceptable and morally wrong” (Douzinas, 2000, 193-194). Only those maxims, rules and norms which meet the criteria of universality are morally binding. By bringing reason, freedom and law together, the Kantian revolution took the ground of law from transcendent divinity and assigned it to human beings. For Kant, moral law cannot be based on happiness or any other empirical good. Therefore, any particular conception cannot be a basis of pure principle of state; and a universal principle of right cannot be based upon happiness, but only upon universal principle, such as freedom. Kant thought that the distinction between right and virtue is based on the concept of freedom, but in different ways; this distinction makes it necessary to divide duties into duties of outer freedom and duties of inner freedom (Kant, 1996, 534).

The English philosopher Jeremy Bentham, who made a utilitarian critique of the theory of natural law and the concept of natural rights, developed an early form of legal positivism. He denied many concepts such as natural rights, state of nature and social contract, since these rights are not observable and enforceable for him. Bentham insisted natural rights were not just nonsense and fallacies, they were also pernicious and anarchical (Douzinas, 2000, 109). “For utilitarians, as opposed to Kantians, qualities such as goodness or truth can only be measured in context, that is, in specific, real situations, and not against some kind of abstract universal principle. Thus, for the utilitarians, the concept of rights can only be defensible if these rights are seen to have emerged out of the quest for the greatest happiness. According to such a perspective, human rights are not, therefore, abstract pre-social phenomena rooted in natural law, but the products of human decision making” (O’Byrne, 2013, 34).

Bentham defines liberty as freedom from external restraint. Since he claimed that liberty is the absence of any restraints, a person is regarded free if he/she is not hindered by others. For Bentham, liberty is neither natural nor rooted in the law of nature, since it is not prior to government or state of civil society. Although he confirms that liberty is good, he does not consider it as a fundamental value, but an expression of the greatest happiness principle.

Bentham holds that concepts such as rights, obligation, laws are with reference to each other and in relation to the concept of punishment. He thought that laws are restriction of liberty or rights. According to Bentham, rights are created by law, are not natural and the existence of rights and laws require the existence of a state. For Bentham, if someone is obliged to do a duty, it means that the person will be punished when he does not fulfill his duty. Then, if one has a right, then another person will possess an obligation. In this respect, law is a command which threatens by punishment. Thus, the right is related to duty, law and punishment.