Introduction to Human Rights Week 1: Foundations of Human Rights VII. Emergence and evolution of Human Rights at the national level: part 2 Great Human Rights declarations of the 18th century have undoubtedly marked an important period in the emergence of Human Rights. However, there were still some issues to overcome. I would like to highlight three of them: 1. The non binding legal nature of the declarations 2. The absence of a legal implementation machinery 3. The limited circle of right holders I am going to address each of these issues and I am also going to show which answers were given to them. So, the first issue was the non binding legal nature of the declarations. Indeed, the declarations of the 18th century had a political value but no juridical one. With these declarations, Human Rights arose as moral rights but had not yet been adopted as legal rights. Today, Human Rights are protected in almost all of the national constitutions. From a historical point of view, the United States have played a pioneering role. The American Constitution of 1787 was revised two years later, in 1789, to add a list of fundamental rights: the ten first amendments referred to as the Bill of Rights. In the other States as well as in the European States, the codification of the fundamental rights is rather a 19th century phenomenon. It is not enough for the effectiveness of fundamental rights to be protected in national constitutions. In addition to this, an institution needs to look after the respect of the rights. In history, judicial review emerged as the institution which has task to implement fundamental rights. Fundamental rights have been protected by judicial review, by courts, competent to sanction their violation but also to concretize the content of these rights. Fundamental rights protection by courts is essentially a 20th century phenomenon. The limited circle of rights holders was also a difficulty to which the Human Rights movement was confronted. Indeed, the fine rhetoric of the 18th century's great declarations contrasted with the political reality or with the interpretation of these texts. Several categories of individuals were excluded from the circle of beneficiaries of these rights. Examples of this would be women, slaves, and poor people. As for women, Olympe de Gouges already criticized marginalization and the oppression of women, in 1786. She who has been guillotined, sentenced for being impudent, an enemy of the French Revolution, and a "woman-man" wrote: "Eh! Thus is our poor sex exposed. Men have all the advantages [...] We have been excluded from all power, all learning." In 1791, she opposed to the Declaration of the Rights of Man and of the Citizen the Declaration of the Rights of Woman and the Female Citizen. This text highlighted the necessity of reform. Article 4 of this Declaration reads as follows: "the only limits on the exercise of the natural law of woman are perpetual male tyranny; these limits are to be reformed by the laws of nature and reason." Slaves were also not considered as people entitled to Human Rights. The Virginia Declaration supports these words. Indeed, it was written in the draft Declaration that men are born equal and free. Afterwards, the word "born" was crossed out because it was considered as being dangerous for a society which was engaging in slavery. Furthermore, a part of a sentence was added. It has been added that Human Rights cannot be lost when we enter in a state of society. Behind this precision, the idea was to affirm that slaves are not part of the political society and are therefore not entitled to Human Rights. As for poor people, they were excluded from the social contract as they could not vote. It was the system of political franchise. Abbé Sieyès had already made a distinction between the active citizen, those who have money and can vote, and the passive citizens, those who cannot vote and do not have money. Therefore, there are several groups of people who were excluded from Human Rights ownership. However, the great declarations of the 18th century have created a presumption of equality and freedom. The declarations have then inspired demands to extend the category of people entitled to the rights. The declarations have for example inspired the women's movement, the socialist movement which also fought against the political franchise, and the abolitionist movement. It would be wrong to think that the history of Human Rights is linear and is always going towards progress. There were, in the 19th century, the appearance of several counter theories. I would like to mention the following ones: 1. Positivism 2. Utilitarianism 3. Nationalism 4. Colonialism 5. and social Darwinism Legal positivism is a doctrine which was opposed to the theory of natural law. This doctrine refuted the theory of natural rights because it was seen as a subjective metaphysical concept coming under moral but not under legal rights. A well-known partisan of positivism, Jeremy Bentham, is also known for criticizing the Declaration of the Rights of Man and of the Citizen. In "Anarchical Fallacies: Being an examination of the Declaration of Rights issued during the French Revolution", Bentham refutes the theory of natural law. According to him, it is absurd and nonsense, nonsense up on stilts. The only real rights, are the rights which are mentioned by the legal order. But natural laws are not real rights. They are illusions. They have been invented. Bentham was not only an adherent of positivism, but he was also the founding father of utilitarianism. According to utilitarianism, the ethical maxim that should be followed is to maximize the happiness of the greatest number. Therefore, the Rights are justified to the extent that they are useful to general well-being. According to Bentham and utilitarianism, torture is not strictly prohibited. Torture can be justified in certain circumstances, for example, when it can be useful to prevent a great calamity. The third counter theory, nationalism, led to an introverted vision of Human Rights. Human Rights are not really Human Rights but they are citizens' rights. Who is the citizen? The citizen belongs to the nation. Therefore, the individual is not at the center like it was during the Enlightenment but the emphasis is on membership in a community. The nation is itself defined as a community which is bound together by history or by religion. Universal rights cannot exist with this approach. Rights are always related to a given community or to a given legal order. Controversies on the universality of Human Rights appeared with nationalism. This controversy still exists today. It is a difficult controversy which opposes the universalists to the relativists of Human Rights. The fourth and the fifth counter theories, colonialism and social Darwinism, were also not favourable to the doctrine of Human Rights. The two theories justified occupation by drawing a distinction between the "advanced" people, on the one hand, and on "barbarians", who are "less advanced", on the other hand. The following quotation illustrates these words and defines colonialism: "To colonize means to establish contacts with new countries in order to profit from all kind of resources; to use them for the national interest; and to simultaneously bring to primitive tribes advantages of intellectual, social, scientific, moral, artistic, literary, commercial and industrial culture which are the privileges of the upper races. Colonization is therefore a justified settlement of a new country by an advanced race in order to realize the double aim that we have just pointed out." The distinction between the upper race, on the one hand, and the inferior race, on the other hand, led humanity to the negation of Human Rights. It led to the moral and humanitarian catastrophe of World War II. As we will see next week, it is the experience of World War II that led to a revival of the thought of Human Rights and to their anchorage at the international stage.
