Landmarks in the Historical Development of Human Rights Theory: A Synoptic View
Author: Conrad John Masabo
Originally Published at Peace and Conflict Monitor on: 02/11/2013
Human rights (HRs) campaigns, debates and concerns have and are dominating the international and local forum and sphere of interests and “human rights talk has gained increasing influence in the international relations of the global south, especially in debates about emancipatory potential for people at the grassroots to influence development projects and for emerging domestic civil societies.” In fact, “one of the significant areas under discussion in our today’s world is the issue of human rights.” But the fact is: it is only recently that the phrase “human rights” has come into popular discourse. However, ideas synonymous to the phrase human rights are not new at all, having existed long before being written down in international documents such as The United Nations Universal Declaration of Human Rights (UNDHRs) and national constitutions such as The Constitutions of the United Republic of Tanzania [CURT]. People from time to time have revealed their concern for other people through their commitment to principles of prosperity, justice, and caring for others through the cultural practices and tradition. Commenting on the origin and the foundation of human rights, Hellsten and Lwaitama in 2004 contend as follows:
Human rights, however, are not types of entity that happens to be there for people to claim. Rather they had to be invented and grounded on various philosophical, theological and political theories and enforced by various international conventions and agreements as well as by national and regulations.
It is now evident that the phrase or “the language of universal human rights is arguably the only shared value system which we have in the modern world for discussing questions of justice.” In that regard, the questions clicking right away to the mind of those sharing this view are: “What makes basic foundation of human rights? Are all human rights claims bona fide and substantial?” Answering these questions serves as the take off point for providing the basis for the theory of human rights and thus is “an indisputable stand point locating a fundamental basis which provides an authentic and steadfast explanation.” Today, “human rights are integral to modern life and the importance of upholding them is a key concern to many governments, NGOs and charities around the world.”
In this essay we are going to present a historical development of human rights theory. In doing so the essay is divided into five parts. The first part is an introduction of which among other things has presented a rationale for and need for understanding and promoting of human rights. The second part attempts to define the concept theory and the term human rights as it is understood in the contemporary usage and thereby conceptualising the concept human rights theory as it ought to be construed. The third part that follows presents the main subject: the historical development of human rights theory. This will be discussed under two main historical periods: the first “Human Rights Theory Prior to the Second World War”; and the second “Human Rights After the Second World War”. In each epoch some important landmarks of human rights theory will be highlighted and possibly be discussed. The forth part is devoted to highlight some of the approaches that are applied in the study and understanding of human rights theory. The fifth part is the last and concluding part in which some general comment on the human rights theory will be made and possible setbacks facing the promotion of human rights.
Conceptualising Human Rights Theory
Conceptualising human rights theory owes the understanding of words making-up this concept; that is theory and human rights. The Oxford Advanced Learner’s Dictionary defines the term theory as “a set of reasoned ideas intended to explain facts or events; […] opinion or supposition not necessary based on reasoning; […] ideas or supposition in general and principles on which a subject.” The third meaning: ideas or supposition in general and principles on which a subject; serves a great deal in conceptualising human rights theory. In 1988, Chalfant and Labeff defined a theory as “simply a set of logical ideas developed to explain something.” Thus, human rights theory means logical ideas developed to explain human rights.
Like other technical terms, different scholars have defined “human rights” differently. For example, Shivji et al. (2004) defined human rights as “fundamental rights, which a person has by virtue of being a human being [… and are] not dependent on being provided for in a particular legal document.” For Kamaara E. and Kamaara, M. human rights “refer to entitlements (rights and freedoms) to which a person has a just and legal claim merely by virtue of his or her being [… and] are not given to individual by governments or by any other authority because they are natural.” Both Shivji, Kamaara E. and Kamaara M. contend or confess human rights to be natural, with the legal documents there only to ratify something already existing. On the other hand, Mertus, Flowers and Dutt consider human rights to mean “entitlements (rights) that every person is entitled to simply because he she is a human being irrespective of his/her citizenship, nationality, race, ethnicity, language, sex, sexuality, or abilities.” Sen, on his side, conceives of human rights to mean “moral claims on […] individual and collective agents, and on the design of social arrangements.”
In all these definitions, the nature of human rights is implied to be the essence of human beings and assume the aspects of universality and eternity. In tandem with the above definition, human rights theory should be understood as synonymous to logical ideas or general principles at which human entitlements are best understood. This is because “the development of human rights over the centuries has not been uncontested process [but rather] there has been much philosophical debate on its fundamental and applied meaning”. Thus, contemporary debates and discussions of human rights mostly based on the concept’s meaning and applicability while the traditional political philosophy debated on what seems to be fundamental issue: whether human beings do in fact have any right at all and why they do. In that regard, “it is obvious then that the claims of human rights in their forms all remain abstraction unless the concrete social conditions necessary for the realization are emphasized on the rights foundation, and thus “knowing the basic foundation for human rights claim is a significant step of knowing” them.
The Historical Development of Human Rights Theory
The roots of rights and rights theory can be traced from ancient and medieval times, through the revolutionary ages of Britain, America and France. But in “the Western political thought, the rights doctrine are thought to have a long history from the theory of natural rights through divine [God given rights] to [practical] rights in the agreements made in a reciprocal social contract between the autonomous and rational moral agents/decision-makers.” These ideas have faced a lot of criticism with regard to the reality of the concept of a social contract that was propounded by the liberal scholars. Sen in 1999, for example, challenged this idea by suggesting that presenting the development of human right theory in that view is to attribute human rights to the western cultures and civilizations, thus making the question of universality of human being more difficulty. He has similarly challenged the proposition that the historical origins of the idea of human rights are uniquely rooted in the Western traditions of natural law and natural rights. He instead comments that the idea and development of human rights have not emerged exclusively in or from a single cultural tradition but rather have deep historical roots from non-Western societies.
Our venture to trace the historical development of human rights theory has uncovered further evidence that the theory is the result of multiple contribution from different people of various walks in life, including philosophers, theologians, social scientists, and lawyers, to mention only a few. Philosophers, for example, “have focused on foundational issues in ethics, lawyers on questions of international legal obligation, [but …] both disciplinary perspectives have tended to neglect the institutional, economic and structural processes that impact on individual freedoms and human rights.” On their side, theologians have provided a conception of human rights that is often informed by natural law theology, which understands human rights from the perspective of ultimate meaning and purpose of life. In all these perspectives, what is obvious is that human rights theory is both historical and transcendent in which at the centre there have been three points that are key in the whole process of developments of human rights theory, namely: “human dignity” (a basic ground for human rights); “natural order” (of human relationships); and “rights and duties” (the binding rule for human rights claims). It is evident, however, that:
Philosophical thought has a significant role in the developments of human rights and rights, we know them today are largely the product of seventeenth and eighteenth-century Western thinking. During this period, philosophers engaged in debates regarding the concept of rights and the reasoning for their existence, producing often divergent rights theories.
Having given that overview to the historical development of human rights theory, we now turn to present some major landmarks that had a significant contribution to the development of human rights theory. Largely what is possible now is to give synoptic development of human rights theory. This is because the phenomenon human rights theory itself is very wide and can almost be linked to the emergence of human beings. In any case, the following discussion will be organized under two headings, first, “Human Rights Theory Prior to the Second World War”; and the second “Human Rights Theory after the Second World War”
Human Rights Theory Prior to the Second World War
During this period, rarely was the language of human rights used in the modern sense. This lack, however, does not suggest that there was no theory explaining synonymous ideas to contemporary human rights theory. It is an important period that laid the foundation of what was later referred to as human rights after the Second World War. The human rights theory of this era was centred on the issues of natural, individual and man rights. It is a period that constituted of an ancient thinking, medieval, enlightenment, and modern thinking on human rights. For example, some scholars have claimed that “Ancient Greek thought contains the origins of rights theory and the concept of justice, although at that time there was no theory or language of ‘human’ rights in the modern sense.” The debates here range from those of Greek natural law, Cicero and the Roman natural rights, natural law theology and hence divine rights of Thomas Aquinas, property rights of the medieval England under the Magna Carta, natural rights of the social contract theorists (Thomas Hobbes, John Locke and Thomas Paine), inherited rights of the American Declaration of Independence, rights of man of France and the need to promote other peoples rights of Immanuel Kant. This period, seem to support the notion that “human rights spring from human nature itself and from a person’s duty of tendering human nature and the duty of tendering toward the ultimate destiny […] of human rights.”
In the course of time, these concepts were differentiated and elaborated to their present meaning. Aristotle, one of the founding figures of Western philosophy, distinguished legal justice and natural fundamental justice. From his distinction it is now clear that, “Natural rights, universal rights which do not require ratification by government, are seen as ancestor of the modern ‘human rights’.”
The period of natural rights was followed by the period in which thinking on human rights was guided by the divine law propounded mostly by Thomas Aquinas in his writings on Natural Theology that guided his thinking on human rights. During this period, human rights were conceived of as “God –given” and therefore, inherent, inviolable, and inalienable. It is, thus, natural moral law that calls for activity of reason, free initiative, and even attention to historical circumstances towards finding a concrete and real path for rational and authentic claims for human rights.
What followed were the liberal thinkers who concentrated in their defense of individual rights being realized under the social contract. Key figures of the liberal theory to human rights were Thomas Hobbes and John Locke. The fruits of this thinking were later realized in the American Declaration of Independence in 1776.
The major historical landmarks of this period in terms of theory to human rights include the appearance of Magna Carta in Medieval England in 1215 which brought the idea of property rights, delineated individual rights versus state rights and restricting the crown from interfering religious freedom, the English Bill of rights of 1689, the American Declaration of Independence of 1776, which declared that all persons have inherent rights, the French Revolution Declaration, which emphasized the liberty, fraternity and equality among all people in their enjoyment of the rights of man and of the citizen, the 1791 United States of America Constitution and Bill of Rights, and the British Parliament’s abolition of the British Slave Trade of 1807.
Human Rights Theory After the Second World War
This is a period in which the use of the now common language of human rights gained momentum and became basic in the writing and theorizing on human rights. Despite the prior initiatives, people continued loosing their lives before the governments and dictators to which they were subject. Some may even argue that this period’s violations of human rights led to World Wars I and II. Also, we must point out that human rights violations increased during the fight of these wars.
Following World War II, key international players vowed to change international policy to prevent future genocide and mass killings. At the end of WWII, citizens working through NGOs urged the creators of the United Nations system to include the promotion of a spectrum of human rights in the UN Charter. These were to be rights to which all people are entitled regardless of who they are or where they live. The United Nations created a Commission on Human Rights in 1946 led by Eleanor Roosevelt. The commission drafted the Universal Declaration on Human Rights (UDHR) published in 1948 to prevent future governments from declaring full control over the lives and fates of their citizens. Human Rights were established to ensure that each and every person, regardless of nationality, race, religion, sex, beliefs or abilities, would be protected. On 10 December 1948, the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly. This important document signifies the world’s promise to recognize and protect freedoms and rights to which all individuals, men, women, and children, are entitled.
Despite of what the United Nations have developed, this period also witnessed the questioning of the validity and universality of human rights, and the applicability of the term to all people came under serious interrogation. This in turn led to the production of massive literature on the theory of human rights. In historical chronology, the following contributions to the theory of human rights are of particular importance: the United Nations Charter of 1945, from which the expression human rights comes into general use, the United Nations Commission on Human Rights in 1946, the United Nations Universal Declaration of Human, an attempt to recognize human rights in the post war period in 1948, the European Convention on Human Rights (ECHR) in 1950, International Human Rights Covenants: Civil and Political Rights and Economic, Social and Cultural rights in 1966, the international convention on Elimination of all the Forms of Racial Discrimination in 1965, the convention on the elimination of all Forms of Discrimination against Women in 1979, enactment of African Charter of Human and People’s Rights in 1981, though it was in force in 1986, the Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment in 1984, the Convention on the Rights of the Child in 1989, and the establishment of United Nations High Commissioner for human rights. The struggle is still under way and every day human rights receive further contributions to its theory.
As always, the academic arena has been influential in the development of human rights theory. What are contended to be rights and their current status of recognition in the world today owes a lot to the academic contributions of different epochs so as to consolidate and solidify the theory.
It is now more than 50 years since the Declaration of Human Rights. The state of the promotion and protection of the human rights is questionable, and continued violations of human rights present enormous challenges. The 21st century should color the world with the promotion of human rights and not otherwise. However, we should be carefully with the phenomenon human rights, for, if not carefully coordinated, we might end up with diversification of what is central to human rights. Signs are promising. For example in Tanzania, since 1984, the Bill of Human Rights was incorporated in the 1977 Constitution. However, for all people to fully enjoy what they are entitled to, we must strive to improve the quality of civic competence, democracy and rule of law to allow the proper promotion and protection of human rights.
Arts & Humanities Research Council (AHRC) Sector Review, “From Aristotle to the UN: the development and growth of human rights” at http://www.ahrc.ac.uk/About/Policy/Documents/trackingbackhumanrights.pdf (Accessed on December 31, 2009)
Eunice Kamaara & Mary Kamaara, “Abortion and HIV/AIDS: A Human Rights Perspective” in African Ecclesial Review (AFER) 47/1&2 (March-June 2005), 44-56.
Paul Chalfant, H.P. and Labeff, E.Understanding People Social Life: Introduction to Sociology, St Paul: West Publishing Company, 1988.
Hellsten, S. K. and Lwaitama, A. F. Civic Ethics Handbook: Ethics and Reflective Skills for Democracy, Dar es Salaam: Oxford University Press, 2004.
http://afraf.oxfordjournal.org/cgi/pdf_extract/105/420/488 (Accessed on December 31, 2009).
IRC Sierra Leone HUMAN RIGHTS TRAINING MODULE Faciliteto’s Notes August, 2003.
Michael Sia Tesha, “Whether Human Rights Claims Are Genuine: In Perspective of the Pacem in Terris” in Africa Tomorrow 11/1 (June 2009), 67-80.
Norlén, G. A History of Ideas: Three Areas of western Philosophy, Makumira-Tanzania: The Research Institute of Makumira University College, 2002.
Overseas Development Institute (ODI) “Economic Theory, Freedom and human Rights: The Work of Amartya Sen” ODI Briefing Paper, November 2001, 4 at http://www.odi.org.uk/RIGHTS/publication/sen.pdf (accessed on December 31, 2009)
Shivji, I. G. ed., et al., Constitutional and Legal System of Tanzania: A Civics Sourcebook , Dar es Salaam: Mkuki na Nyota Publishers, 2004.
Tarimo, A. Human Rights, Cultural Differences and the Church in Africa, Morogoro -Tanzania: Salvatorianum Publishing House, 2004.
Tina Beattie. Review of The Challenge of Human rights: Origin , Development, and Significance by Jack Mahoney (Malden, Oxford, Carlton: Blackwell Publishing, 2007) and review of Christ and Human Rights: Transformative Engagement (Aldershot UK and Burlington VT: Ashgate, 2006) http://tina.beattie.googlepages/Tablet_mahoney_newlands.pdf (Accessed on December 31, 2009).
Bio: MASABO, Conrad John is a masters student at the Pan African University Institute for Governance, Humanities and Social Sciences (PAU-GHSS), studying for an MSc in Governance and Regional Integration. He is a teaching assistant at the Dar es Salaam University College of Education (DUCE) a constituent college of the University of Dar es Salaam in Tanzania. His research interests are in African Affair ranging to African Peace and Conflict, History, Politics, Gender and Development. He can be reached by the following email:email@example.com