Barend Vlaardingerbroek: Human rights – the gift of pale but not stale males to humankind

 Some of the pale non-stale males who drafted the 1789
Declaration of the Rights of Man and the Citizen

Human rights are rights we have simply because we exist as human beings - they are not granted by any state. These universal rights are inherent to us all, regardless of nationality, sex, national or ethnic origin, color [sic], religion, language, or any other status. They range from the most fundamental - the right to life - to those that make life worth living, such as the rights to food, education, work, health, and liberty. 
-  UNHR Office of the High Commissioner

The expression ‘human rights’ has mantra status, but what exactly does it refer to?

Wherever there is a system of law, people may be said to have rights. But the ancient laws such as the Code of Hammurabi mostly laid down legal procedures and penalties for violations of legal obligations arising from these as well as punishments for misdemeanours. Rights in early English law were largely procedural, such as the famous Magna Carta right to be judged by one’s peers (the forerunner of the jury system). Substantive rights – mostly those that confer an entitlement – are of more recent origin.

How much the concept of rights has changed over time can be gleaned from the Bill of Rights 1689. This is all about the rights of the monarch vis-à-vis Parliament. But just a few decades on, the concept of ‘The Natural Rights of Man’ had gained traction. This arose from the Natural Law tradition that had emerged during the Middle Ages. In the words of John Locke, “The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of nature for his rule.”

The ‘law of nature’ as Locke saw it revolved around the notion of “all being equal and independent” and the realisation, through the faculty of reason (his emphasis, unlike reliance on divine revelation)), that “no one ought to harm another in his life, liberty, or possessions.”

The American Declaration of Independence 1776 summarises the state of play with regard to contemporaneous conceptions of human rights (note the emphasis on democratic governance):

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. 

Thomas Jefferson, one of the authors of this declaration, acted as an advisor to the French parliament in the drafting of the Declaration of the Rights of Man and the Citizen 1789. It defined the scope of human rights as “liberty, property, security, and resistance to oppression” and described the role of the State as the enforcer of these rights. The preamble reads as follows (Avalon project [Yale] English translation):

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.

For ensuing list see https://avalon.law.yale.edu/18th_century/rightsof.asp#:~:text=The%20aim%20of%20all%20political,security%2C%20and%20resistance%20to%20oppression).

As an interesting aside, it will be noted that God had been removed from the scene in the French document whereas in the American one he is presented as the origin of natural law. Most anglophone Enlightenment men were Deists – they believed that a transcendental superpower had created the raw material of the universe and the laws that animated it, but had then stepped back and let the show run of its own accord. The Deism paradigm, which first emerged in the late 17^th century, caught on strongly in England and America. But both Catholic and mainstream Protestant authorities in continental Europe regarded Deism as a heresy, and so it kept a low profile there.

The Declaration has an emphasis on national sovereignty particularly with regard to law-making (see list using link above). This creates a bit of a conundrum: if human rights exist on the basis of being human alone, then the State ought to have no role to play; but play a role it must, through law-making supportive of human rights and through the judiciary in enforcing those. This focus on sovereignty moreover foreshadows the friction between universal human rights and specific rights legislated into (or out of) existence by the State with the advent of international human rights law in the mid-20^th century. While the fundamental notion of human rights in the 18th century was universal in theoretical scope, its proponents were thinking and acting locally rather than globally when it came to application and enforcement. For instance, the abolition of slavery took place in stages at different rates in the various jurisdictions where slavery was practised, and the extension of full human rights to formerly enslaved races such as Negroes came much later after that (in Australia, Aborigines did not have the vote until 1967). The rights of homosexuals are a pertinent case in today’s world: on the one extreme their rights are protected by European Union law while on the other the death penalty against homosexuals remains in force in a number of countries.

Nota bene that property ownership as a human right was long denied by the communist nations and remains fiercely opposed by stalwarts such as North Korea.

The history of human rights since the late 18^th century has been one of growth and development. Disputes arise as to what is a human right and what is not. People tend to appeal to the abstract notion of human rights when trying to make a case for social and legislative change, but most of the time the term ‘rights’ is used as a normative argumentative ploy rather than referring to hard-and-fast human rights law.

What we can say with certainty is that the concept of human rights is a European, mostly Western European, innovation that changed the world. The people who brought it about were certainly male and pale (especially in winter), but stale these avant-garde revolutionaries were most definitely not.

Barend Vlaardingerbroek is a retired university academic with over 30 years experience at universities in PNG, Botswana and Lebanon. He is proud to be a pale male and admits to becoming a wee bit stale as a result of retirement. Feedback welcome at bv_54@hotmail.com