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人权的历史发展 The development of Human Rights in history

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发表于 1/17/2018 00:27:42 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 1/17/2018 00:59 编辑

人权的历史发展
The Development of Human Rights in History

Human rights trace the historical origins of the concept back to ancient Greece and Rome, where it was closely tied to the premodern natural law doctrines of Greek Stoicism

Roman law may similarly be seen to have allowed for the existence of a natural law and, with it, pursuant to the jus gentium ("law of nations"[1], certain universal rights that extended beyond the rights of citizenship. According to the Roman jurist Ulpian, for example, natural law was that which nature-not the state-assures to all human beings, Roman citizen or not.

It was not until much later, after the Middle Ages, however, that natural law doctrines became closely associated with liberal political theories about natural rights. In Greco-Roman and medieval times, natural law doctrines taught mainly the duties, as distinguished from the rights, of "Man." Moreover, as evident in the writings of Aristotle and St. Thomas Aquinas, these doctrines recognized the legitimacy of slavery and serfdom and, in so doing, excluded perhaps the central most ideas of human rights as they are understood today-the ideas of freedom (or liberty) and equality.

Evolved from about the 17th century to the Peace of Westphalia (1648), during the Renaissance and the decline of feudalism. When resistance to religious intolerance and political-economic bondage began the long transition to liberal notions of freedom and equality, particularly in relation to the use and ownership of property, then were the foundations of what today are called human rights truly laid.

The teachings of Aquinas (1224/25-1274) and Hugo Grotius (1583-1645) on the European continent, and the Magna Carta (1215), the Petition of Right of 1628, and the English Bill of Rights (1689) in England, were proof of this change.

It was primarily for the 17th and 18th centuries, however, to elaborate upon this modernist conception of natural law as meaning or implying natural rights. The scientific and intellectual achievements of the 17th century-the discoveries of Galileo and Sir Isaac Newton, the materialism of Thomas Hobbes, the rationalism of Rena Descartes and Gottfried Wilhem Leibnitz, the pantheism of Benedict de Spinoza, the empiricism of Francis Bacon and John Locke-encouraged a belief in natural law and universal order; and during the 18th century, the so-called Age of Enlightenment, a growing confidence in human reason and in the perfectability of human affairs led to its more comprehensive expression.

the writings of the 17th-century English philosopher John Locke- arguably the most important natural law theorist of modern times-and the works of the 18th-century Philosophers centred mainly in Paris, including Montesquieu, Voltaire, and Jean-Jacques Rousseau. Locke argued in detail, mainly in writings associated with the Revolution of 1688 (the Glorious Revolution), that certain rights self-evidently pertain to individuals as human beings (because they existed in "the state of nature" before humankind entered civil society); that chief among them are the rights to life, liberty (freedom from arbitrary rule), and property; entering civil society, pursuant to a "social contract," humankind surrendered to the state only the right to enforce these natural rights, not the rights themselves; and that the state's failure to secure these reserved natural rights (the state itself being under contract to safeguard the interests of its members) gives rise to a right to responsible, popular revolution.

England's Revolution of 1688 and the resulting Bill of Rights, it provided the rationale for the wave of revolutionary agitation that then swept the West, most notably in North America and France. Thomas Jefferson, who had studied Locke and Montesquieu and who asserted that his countrymen were a "free people claiming their rights as derived from the laws of nature and not as the gift of their Chief Magistrate," on July 4, 1776: '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."

In the Declaration of the Rights of Man and of the Citizen of August 26, 1789. Insisting that "men are born and remain free and equal in rights," the declaration proclaims that "the aim of every political association is the preservation of the natural and imprescriptible rights of man," identifies these rights as "Liberty, Property, Safety and Resistance to Oppressions," and defines "liberty" so as to include the right to free speech, freedom of association, religious freedom, and freedom from arbitrary arrest and confinement

     In sum, the idea of human rights, called by another name, played a key role in the late 18th- and early 19th-century struggles against political absolutism. It was, indeed, the failure of rulers to respect the principles of freedom and equality, which had been central to natural law philosophy almost from the beginning, that was responsible for this development. In the words of Maurice Cranston, a leading student of human rights, ". . . absolutism prompted man to claim [human, or natural] rights precisely because it denied them."

The idea of human rights as natural rights was not without its detractors, however, even at this otherwise receptive time. In the first place, being frequently associated with religious orthodoxy, the doctrine of natural rights became less and less acceptable to philosophical and political liberals. the doctrine of natural rights came under powerful philosophical and political attack from both the right and the left.

In England, for example, conservatives Edmund Burke and David Hume united with liberal Jeremy Bentham in condemning the doctrine, the former out of fear that public affirmation of natural rights would lead to social upheaval, the latter out of concern lest declarations and proclamations of natural rights substitute for effective legislation. In his Reflections on the Revolution in France (1790), Burke, a believer in natural law who nonethe- less denied that the "rights of man" could be derived from it, criticized the drafters of the Declaration of the Rights of Man and of the Citizen for proclaiming the "monstrous fiction" of human equality, which, he argued, serves but to inspire "false ideas and vain expectations in men destined to travel in the obscure walk of laborious life." Bentham, one of the founders of Utilitarianism and a nonbeliever, was no less scornful. "Rights," he wrote, "is the child of law; from real law come real rights; but from imaginary laws, from 'law of nature,' come imaginary rights .... Natural rights is simple nonsense; natural and imprescriptible rights (an American phrase), rhetorical nonsense, nonsense upon stilts." Hume agreed with Bentham; natural law and natural rights, he insisted, are unreal metaphysical phenomena.

This assault upon natural law and natural rights, thus begun during the late 18th century, both intensified and broadened during the 19th and early 20th centuries. John Stuart Mill, despite his vigorous defense of liberty, proclaimed that rights ultimately are founded on utility. The German jurist Friedrich Karl von Savigny, England's Sir Henry Maine, and other historicalists emphasized that rights are a function of cultural and environmental variables unique to particular communities. And the jurist John Austin and the philosopher Ludwig Wittgenstein insisted, respectively, that the only law is "the command of the sovereign" (a phrase of Thomas Hobbes) and that the only truth is that which can be established by verifiable experience. By World War I, there were scarcely any theorists who would or could defend the "rights of Man" along the lines of natural law. Indeed, under the influence of 19th-century German Idealism and parallel expressions of rising European nationalism, there were some-the Marxists, for example-who, although not rejecting individual rights altogether, maintained that rights, from whatever source derived, belong to communities or whole societies and nations preeminently. Thus did F. H. Bradley, the British Idealist, write in 1894: 'The rights of the individual are today not worth serious consideration .... The welfare of the community is the end and is the ultimate standard."

But it was not until the rise and fall of Nazi Germany that the idea of rights- human rights-came truly into its own. The laws authorizing the dispossession and extermination of Jews and other minorities, the laws permitting arbitrary police search and seizure, the laws condoning imprisonment, torture, and execution without public trial-these and similar obscenities brought home the realization that law and morality, if they are to be deserving of the name, cannot be grounded in any purely Utilitarian, Idealist, or other consequentialist doctrine.

The United Nations (U.N.), all members pledged themselves to take joint and separate action for the achievement of "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion." In the Universal Declaration of Human Rights (1948), representatives from many diverse cultures endorsed the rights therein set forth "as a common standard of achievement for all peoples and all nations." And in 1976, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, each approved by the U.N. General Assembly in 1966, entered into force and effect.





 楼主| 发表于 1/17/2018 01:02:32 | 显示全部楼层
本帖最后由 郭国汀 于 1/17/2018 01:43 编辑

The American ideas  of Human Rights

      Benjamin Franklin stated his perception of the accomplishment clearly when he wrote to Silas Deane from Paris in 1777:
            Tyranny is so generally established in the rest of the world, that the prospect of an asylum in America for those who love liberty, gives general joy, and our cause is esteemed the cause of all mankind...We are fighting for the dignity and happiness of human nature. Glorious is it for the Americans to be called by Providence to this post of honor.[1]
    the natural rights of persons accrued to states as a result of the social contract. Therefore, no state, however virtuous, had the right to intervene in the domestic arrangements of another state.[2]
    Wilson felt that the United States had an "exceptional mission"[3] to spread human freedoms which he saw as practically synonymous with national self-determination.
    American view of natural rights included the notion that states had the natural right of nonintervention in their internal affairs. Legal concepts of nonintervention were at least partly responsible for the restrained use of human rights as a foreign policy guide through most of the nineteenth century.
      The philosophy of natural rights, as it was embodied in the American political system, was essentially a negative one. That is, it was addressed to the limitations and constraints upon public authority rather than to the positive obligations of government.[4]
      The rise of socialist ideology in Europe in the nineteenth century and the advent of a "Marxist" regime in Russia in 1917 provided a serious challenge to the prevailing notion of limited direct and explicit economic content to the concept of human rights. Marxists argued that economic rights were the central element in the concept of human rights. Without basic economic rights, individual political rights were meaningless, useless bourgeois rights or, worse, tools for the oppression of the working class.[5]
    Mrs. Roosevelt told an audience on another occasion:
            We must not be confused about what freedom is; basic human rights are
        simple and easily understood; freedom of speech and a free press; freedom of
        religion and worship; freedom of assembly and the right of petition; the right of
        men to be secure in their homes and free from unreasonable search and seizure  -
        and from arbitrary arrest and punishment. We must not be deluded by the efforts
        of the forces of reaction to prostitute the great words of our free tradition and
        thereby to confuse the struggle. Democracy, freedom, human rights have come to
        have a definite meaning to the people of the world which we must not allow any
        nation to so change that they are made synonymous with suppression and dictatorship.[6]
    Carter said: "The Covenant on Civil and Political Rights says what Governments should not do to their people; the other one says what Governments must do for their people."[7]
    The natural rights philosophy was primarily directed at internal arrangements for limitations upon governmental action in relation to individuals. Self-determination in this sense meant a prescribed set of political norms insuring to the individual rights of self-government and freedom from arbitrary governmental actions, that is, political democracy. Self-determination in this sphere, then, meant the rights of states to freedom from external control, that is, national independence. The common strand linking the two notions of self-determination was freedom from arbitrary external control-by one's own government in the case of political democracy and by another government in the case of national independence. Thus, natural rights meant individual rights at home but the rights of nation-states abroad.[8]
    Wilson clearly believed that self-determination interpreted as national independence went hand in hand with self-determination as political democracy. To him, authoritarian governments were alien governments.
the rise of the militant German nationalism associated with Nazism. In a sense, Hitler was a product of the praise of nationalism which was an integral part of the Wilsonian doctrine of self-determination-not, perhaps, the inevitable end product nor even a probable one, but certainly a possible one and one which had come to terrifying reality in the 1930s. Hitler's regime, growing so directly out of the nationalism on which self-determination is based, became probably the most systematic and far-reaching violator of human rights in all of human history.[9]
    McCarthyism used anti-communism as the justification for the violation of the traditional political rights of significant numbers of American citizens. Human rights-the rights of free speech, free press, and freedom of association-could be violated in the name of human rights-defense of the American way of life against communism. Anticommunism became the basic human right, justifying violation of other human rights as self-determination had sometimes justified the violation of other rights in an earlier-era.
in 1959. Dulles wrote:
            I was brought up in the belief that this nation of ours was not merely a self-
        serving society but was founded with a mission to help build a world where liberty
        and justice would prevail. Today that concept faces a formidable and ruthless
        challenge from International Communism. This has made it manifestly difficult to
        adhere steadfastly to our national idealism and national mission and at the same
        time avoid the awful catastrophe of war.
Eisenhower replied:
            You have been a staunch bulwark of our nation against the machinations of
        Imperialistic Communism. You have won to the side of the free world countless
        peoples, and inspired in them renewed courage and determination to fight for
        freedom and principle.[10]
Human rights had become synonymous with anticommunism.
      The Kennedy administration continued to use human rights as a major component of its anticommunist policies. Kennedy's inaugural set the tone:
            We dare not forget today that we are the heirs of that first revolution. Let the
        word go forth from this time and place, to friend and foe alike, that the torch has
        been passed to a new generation of Americans-born in this century, tempered by
        war, disciplined by a hard and bitter peace, proud of our ancient heritage-and
        unwilling to witness or permit the slow undoing of those human rights to which
        this nation has always been committed, and to which we are committed today at
        home and around the world.
            Let every nation know, whether it wishes us well or ill, that we shall pay any
        price, bear any burden, meet any hardship, support any friend, oppose any foe to
        assure the survival and the success of liberty.[11]


[1] Quoted in Paul A. Varg, Foreign Policies of the Founding Fathers (Baltimore: Penguin Books, 1970), p. 3.
[2] Most natural rights philosophers said little about foreign policy; they were preoccupied with the legitimate role of and limitations on government. Those who dealt with international law did address the question of intervention. De Vattel, whose book The Law of.Nations: or Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns was published in 1758 and  widely read by the founding fathers, found only one justification for intervention: when citizens had taken up arms in a just cause of resistance to a tyrannical sovereign. The tyranny of the sovereign alone was not sufficient to justify intervention; it had to be coupled with forceful resistance or civil war. See Emerich de Vattel, The Law of Nations (London: G. G. and J. Robinson, 1797), pp. 155-56.
[3] N. Gordon Levin, Jr., Woodrow Wilson and World Politics: Amenca's Response to War and Revolution (New York: Oxford University Press, 1968), p. 8.
[4] M. Glen Johnson,Historical Perspectives on Human Rights and US Foreign Policy ,2 Universal Hum. Rts.  (1980)  p, 6
[5] M. Glen Johnson,Historical Perspectives on Human Rights and US Foreign Policy ,2 Universal Hum. Rts.  (1980)  p, 8
[6] . United States, Department of State, Human Rights: Unfolding of the American Tradition, A Selection of Documents and Statements (Washington, D.C.: Bureau of Public Affairs, Department of State, 1949),  pp. 58-59. In fairness to Mrs. Roosevelt, it should be noted that the available evidence suggests that she made substantial and influential efforts to get the U.S. government to take more seriously the economic and social dimension of human rights and played an important part in securing U.S. acceptance of the inclusion of economic and social rights in the Universal Declaration. See A. Glenn Mower, Jr., The United States, the United Nations, and Human Rights: The Eleanor Roosevelt and Jimmy Carter Eras (Westport, Conn. and London, England: Greenwood Press, 1979), p. 51; Eleanor Roosevelt to Harry S. Truman, 21 June 1949, Eleanor Roosevelt Papers, Franklin D. Roosevelt Library, Hyde Park, New York. For a detailed statement of Mrs. Roosevelt's official view of the relationship between civil and political rights and economic and social rights, see United States Delegation to the General Assembly of the United Nations, Press Release # 1328, 5 December 1951, Eleanor Roosevelt Papers, Franklin D. Roosevelt Library, Hyde Park, New York.
[7] . Quoted in United Nations, Monthly Chronicle (Asian Edition) 14, no. 10 (November 1977): 18.
[8] M. Glen Johnson,Historical Perspectives on Human Rights and US Foreign Policy ,2 Universal Hum. Rts.  (1980)  p, 12
[9] M. Glen Johnson,Historical Perspectives on Human Rights and US Foreign Policy ,2 Universal Hum. Rts.  (1980)  p, 13
[10] The letters are reprinted in Department of State Bulletin 40, no. 1036 (4 May 1959): 619-20.
[11] John F. Kennedy, "Inaugural Address," Vital Speeches of the Day 27 (1 February 1961): 226-27.



 楼主| 发表于 1/17/2018 01:45:35 | 显示全部楼层
本帖最后由 郭国汀 于 1/17/2018 02:20 编辑

人权是普世核心价值

Human rights are universal . while they are a possible, and not necessary, consequence of economic development, there is nothing uniquely "western" about human rights. Indeed, all cultures aspire to what Aristotle described as "the good life." At least in this sense, human rights are universal as all humans are rational animals gifted with speech.[1]

Individuals and organisations were tried for crimes under international law:[2] crimes against peace, crimes against humanity[3] and war crimes[4] at the Nuremberg Trials.[5] The defences raised by the accused - sovereign immunity, official immunity,[6] nullum crimen sine lege,[7] respondeat superior,[8] compulsion[9] and one's duty to obey[10] the orders of a lawfully appointed superior[11] - were all, for various reasons, rejected.

To recognize universal principles of natural justice.[12] The non-retroactivity of law (no ex post facto criminal laws) was a principle of law since at least the French Diclaration des Droits de l'Homme,[13] although Hobbes did mention the principle earlier.[14]

Philosophically however they could only be justified via a theory of natural law:[15] the war crimes were such a basic, and self-evident, violation of the inherent dignity of humans that they were implicitly prohibited under ius naturale.[16] Thus, in order to escape accusations of violating the principle nullum crimen, nulla poena, sine praevia lege,[17] the court had to acknowledge arguments based on a theory of universal law - natural justice.

Why natural law will continue to haunt positivism. The only way out of this dilemma is to recognize law is about force; justice is about morality. Positivism and natural law can, in fact, be linked (as Hobbes and Aristotle did)[18] by distinguishing natural law (lex naturale)[19] from natural justice. Justice is about morality, and an unjust law, while positively obligatory, is not legally binding - as Cicero,[20] Aquinas,[21] and many others discussed.

Ultimately the post-war system outlawed wars of aggression;[22] recognized a right to humanitarian assistance[23] and a right of humanitarian intervention;[24] accorded rights and duties to non-state actors, including non-governmental organisations (NGOs);[25]recognized individual and corporate liability in crime, or in tort, under international human rights law; and guaranteed human rights in international declarations, resolutions, and conventions.

International human rights law often finds its origin as universal ideals - not as binding law. These ideals, however, are expressed in non-binding, universal instruments.[26] This is not merely hypocritical[27] whitewash of brutal realities: universal, non-binding instruments are promulgated in order to form the opinio juris of an international custom,[28] which may then ripen into customary law.[29]

No state can do this and retain credibility and legitimacy in the international arena. No state wishes to go on record as favouring torture. No state wishes to affirm the inferior status of women. No state will admit to being racist - because to do so would be to de-legitimate that state, both before its own people, and before the international community.

Order does not necessarily entail justice. The primacy of legal order is generally justified for practical reasons: without order there can be neither peace, nor justice. Consequently, claims of individual justice are generally secondary in the international hierarchy of norms to claims of order. But is that view entirely correct?

In fact, claims for justice may strengthen the international legal order. That is, a claim for justice and a fact of order are generally mutually reinforcing. While it is true that order and peace are necessary prerequisites to justice; peace and order are also consequences of justice. Thus, a just system is also orderly, but an orderly system is not necessarily just. Furthermore, a tyrannical order is inherently unstable. At some point, repression gives way to resistance and rebellion. Thus, where claims of justice and order are mutually reinforcing, the international legal system will seek to impose not only order, but also justice.

The international legal system may even be said to defend justice when its defense does not hinder the maintenance of order. That may be the case of humanitarian intervention or of the right to national self-determination. Granting individuals a legal right to a remedy for violations of human rights will discourage tyrannical orders from violating human rights, thereby assuring that the stability of the international order is not founded on terror. Rather than insuring the false stability of tyrannical orders, the international system protects individuals against injustice by according them protections against the most egregious violations of international jus cogens norms. International law sees order as a general precondition for peace and prosperity. However, this general principle does admit some exceptions, and its telos, peace and prosperity, explains the limits of the principle that the international system seeks to create and maintain a stable, peaceful and prosperous world order.

Recognizing that individuals have rights and duties under international law is not only contemporary practice, it is also logical. This transformation - from a system predicated on maintaining order prior to justice, toward a system predicated on justice in order to preserve order - can be seen in the third-generation rights[30] to democracy, peace and development.[31] It can also be seen in the rights to humanitarian assistance[32] and humanitarian intervention. It can even be seen in the right to national self-determination.[33] While that transformation is far from complete, it is clear that the international system is moving from a logic of "order will ensure peace and eventually obtain justice" to a logic that "justice will encourage peace."

Human rights are, thus, a means to the end of political society, which insure and obtain not merely life, but the good life, for the members of the polity.[34] For this reason, human rights are universal.[35]All humans have universally common capacities, needs, desires, and an interest in prospering. Human rights are the means to a universally desired end.

Western schools of thought, notably ius naturale,[36] tend to see the foundation of human rights on certain inalienable, inherent capacities of humans,[37] generally speaking rationality, though Christian theologians[38] would combine that theory with the idea that that rationality is a reflection of divine perfection.[39]

Hobbes' theory, proposes that natural law is nothing other than the law of the jungle, that is, the law of the strong, survival of the fittest.[40]An alternate school of ius naturale, put forward most famously by Cicero,[41] and later Aquinas,[42] argues that, only laws which are founded in morality or rationality, are valid. The author regards the former theory (Hobbes) as natural law (per Hobbes, lex naturale), and the latter (Cicero and Aquinas) as natural justice.

Very different challenges to the universality of human rights arise in each of these regions due to differing economic conditions. However, neither challenge alone, or in combination, is sufficiently strong to defeat the theory that there are universally common characteristics of human nature, which in turn, are the foundation of a similarly universal theory of human rights, which, in turn, engenders a legally binding practice of human rights.despite historical and economic distortion, a basic fact of humanity is true: all healthy humans are rational and seek to enjoy the good life in society.[43] Thus, there is a genuinely universal human archetype. Moreover, that rationality is precisely the foundation of fundamental rights. Humans have rights, as rational beings and because structures of rights allow that rationality to be deployed practically, not only in order to survive, but also to attain the good life of peace, happiness and social discourse.[44]

Human, as individual and species, to survive, and not only to survive, but also to lead the good life, explain why those accusations are ultimately only partly correct. Human rights emerge from the miasma of post-modern moral relativism[45] precisely where they assert the truly universal aspects of humanity - namely rationality. All humans, not merely rich white males, have an essential dignity and beauty as humans because of the capacity to think. As a consequence of rationality, humans also have the capacity to acquire and alienate. However, the very rationality which permits us to acquire, and alienate, is also the foundation of our essential dignity, explaining why certain of our rights are inherently inalienable.[46]

Although the rule of law is a necessary, but not sufficient condition of human rights, it is a necessary and sufficient condition of a market economy.[47] Without guaranties of the finalities of transaction, and without some social mobility, a complex capitalist economy would be impossible. While capitalism did originate in the west, it has since spread globally, proving the rule of law is not a product of either race or the Christian religion - and thus neither uniquely, nor necessarily, western. Human rights, however, are a function of economic development.

This, then, is the explanation of how the rule of law ultimately can lead to human rights: the rule of law creates necessary pre-conditions for economic prosperity.[48]As the economy develops, speaking of substantive rights in a meaningful sense becomes possible. Human rights, thus, are neither inevitably nor uniquely "western." They are economic functions which appear to have first, or most clearly, developed in the western world.


[1] Eric Engle , Universal Human Rights A Generational History,12 Ann. Surv. Int'l & Comp. L. (2006)  p, 219
[2].  Robert D. Sloane, The Changing Face Of Recognition In International Law: A Case Study Of Tibet, 16 EMORY INT'L L. Rev. 107, 144 (2002) (human rights documents founded sprang from the ruins of the Second World War).
[3].   For a discussion of contemporary issues in crimes against humanity see: Simon Chester- man, An Altogether Different Order: Defining The Elements Of Crimes Against Humanity, 10 DUKE J. OF COMP. & INT'L L. 307 (2000) available at:
[4].   Louis B. Sohn, supra note 5, at 11.
[5] 10.  Charter Of The International Military Tribunal August 8, 1945, art. 6, [hereinafter IMT] available at: . Nuremberg in German is NUmberg.
[6].  IMT art. 7.
[7] .  Paul Feuerbach, Lehrbuch des gemeinen in Deutschland gueltigen peinlichen Rechts (lst ed. 1801) cited in: The Trial of Adolf Eichmann, Defence Submission 2, available at: .
[8].  Jeanne L. Bakker, The Defense Of Obedience To Superior Orders: The Mens Rea Requirement, 17 AM. J. CRIM. L. 55, 57 (1989).
[9].  Id. at 62.
[10].  Id. at 58.
[11].  IMT art. 8. This is perhaps the most counterintuitive problem posed by the Nuremberg principles: the duty of an individual to disobey the sovereign under international law is incongruent with the rationale of the Westphalian system. Once a duty was imposed on individuals to disobey the orders of the sovereign, the argument that only the sovereign should be the intermediary of the individual in the international arena becomes illogical. How can one be required at once to disobey the sovereign and expected to rely on that sovereign for protection internationally? By implication, Nuremberg ended the monopoly of the state as representative of the individual internationally.
[12].  Nuremberg Trial Proceedings Vol. 19, One Hundred And Eighty-Seventh Day, Friday, 26 July 1946 available at:
[13].   Ddclaration des droits de l'homme, art. 8.
[14] HOBBES, LEVIATHAN (1651), chs. XXVII-XXVIIl.
[15].   "Lex mala, lex nulla" - an evil law is no law at all. THOMAS AQUINAS, SUMMA THEOLOGICA, (2d Ed., 1920) citing Augustine "that which is not just seems to be no law at all" (De Lib. Arb. i, 5) available at: .
[16].  For example, when Eichmann was tried for "crimes against the Jewish people," the trial court's judgement (not necessarily the appeal!) relies on Blackstone arguing that mala in se can be prohibited ex post, because they are violations of natural law and are attempts to make a question able distinction between ex post facto and retroactive laws. In contrast, the Appellate judgment relies on the positivist Kelsen. "There is no rule of general customary international law forbidding the enactment of norms with retrospective force, so called ex post facto law." HANS KELSEN, PEACE THROUGH LAW, 87 (1944). The judgement also relied on Stone, "[t]here is clearly no principle of international law embodying the maxim against retroactivity of criminal law." JULIUS STONE, LEGAL CONTROLS OF INTERNATIONAL CONFLICT, 369 (1959). The court even points out: "...it is hardly necessary to invoke natural law to condemn the mass slaughter of helpless human beings. Murder is generally taken to be a crime in positive international law." FRIEDMANN, LEGAL THEORY, 316 (Columbia University Press, 4th ed.). Despite these positivist references the Israeli supreme court still felt compelled to contradict its positivism and rely, finally, on: "universal moral values and humanitarian principles which are at the root of the systems of criminal law adopted by civilised nations."  Israel v. Eichmann, Criminal Case No. 40/61 (district court) available at: ; Israel v. Eichmann (S. Ct.) available at: .
[17].   James People, The Right to Protection from Retroactive Criminal Law, 13 CRIM. L. JNL. 4, 251-62 (1989); 2 AUSTRALASIAN LAW STUDENTS' ASSoC'N J., 5-18 (1989) available at: .
[18].   ARISTOTLE, POLITICS, Book V.
[19].   HOBBES, LEVIATHAN, Ch. XIV, para. 3. Hobbes' lex naturalis is the law of self preservation, implicitly via the use of force if necessary.
[20].   CICERO, THE REPUBLIC at 111, XXII (Loeb Classical Library, 1950), available at:  (lat.).
[21].   THOMAS AQUINAS, SUMMA THEOLOGICA, SECUNDA SECUNDAE PARTIS §57 (Right),available at: .
[22].   Jost Delbruck argues that in the post-cold war era the definition of "aggression" is becoming broader. See, Jost Delbruck, supra note 32, at 708.
[23].   Humanitarian assistance appears undefined in international law. For attempts at definitions see,  Noelle Qu6nivet, Humanitarian assistance: a right or a policy?, J. Humanitarian ASSISTANCE (June, 2000), at:  and also, Songiee Song, NGOs and UN System in Humanitarian Assistance in War Zones: Focusing on Somalia and Rwanda, (M.A. thesis, 2000) at: . In the U.S., domestic law humanitarian assistance is defined (22 U.S.C. § 2296 (b)(2)) as "assistance to meet humanitarian needs, including needs for food, medicine, medical supplies and equipment, education, and clothing." Available at: .
[24].  "Humanitarian intervention is the threat or use of force by a state, group of states, or inter- national organisation primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights." Tania Voon, Closing The Gap Between Legitimacy And Legality Of Humanitarian Intervention: Lessons From East Timor And Kosovo, 7 UCLA J. INT'L L. & FOREIGN AFF. 31, 34 (2002). Some historical precedents exist even prior to the world wars for the right of humanitarian intervention in order to protect human rights. See Louis B. Sohn, supra note 5, at 5.
[25].   The extent of NGO's appears to be growing, and NGOs are even implicated in the question of whether states have a right of intervention to provide humanitarian assistance. See C. STAHN, NGO's AND INTERNATIONAL PEACEKEEPING, 61 ZaORV 379 (2003).
[26].  Thus the conventions are open to all U.N. member states, state parties to the statute of the
ICJ, and any other state the General Assembly of the U.N. invites. E.g. ICCPR, art. 48 and ICESCR, art. 26, available at: .
[27].  There is, of course, plenty of hypocrisy in international relations. See, e.g., GABE VARGES, THE NEW INTERNATIONAL ECONOMIC ORDER LEGAL DEBATE, 1 (Peter Lang, Frankfurt 1983).
[28] The North Sea Continental Shelf Cases (FRG/Den.; FRG Neth.), 1969 ICJ Rep. 3, 44
(Judgment of 20 Feb.) stated that international law defines custom as a universal or near universal state practice coupled with a sense of legal obligation.
[29] But Bin Cheng, argues against the transformationist thesis that international custom can be constituted from international conventions. Bin Cheng, Custom: The Future of General State Practice in a Divided World, in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND THEORY 515 (R. Macdonald, D. Johnston eds.,1986).
[30] Gudmundur Alfredsson, The United Nations And Human Rights, 25 INT'L J. LEGAL INFO. 17,21 (1997).
[31] J. Oloka-Onyango, Human Rights And Sustainable Development In Contemporary Africa: A New Dawn, Or Retreating Horizons? 6 BUFF. HUM. RTS. L. REv. 39, 43 (2000).
[32] The right to humanitarian intervention is attributed to Grotius and can be traced even further back to Suarez. "The 1579 Vindiciae Contra Tyrannos asserted that 'it is the right and duty of princes to interfere in behalf of neighbouring peoples who are oppressed on account of adherence to the true religion, or by any obvious tyranny,"' W. DUNNING, A HISTORY OF POLITICAL THEORIES FROM LUTHER To MONTESQUIEu, 55 (1905).
[33] U.N. Charter arts. 1, 2, 55.
[34] ARISTOTLE, POLITICS (c. 350 b.c.) Book I, Part H, available at:
[35] It is also for this reason that human rights are inherently cosmopolitan and international. Robin West, Is The Rule Of Law Cosmopolitan?, 19 QLR 259 (2000).
[36] See, e.g., Alfred Verdross and Heribert Franz Koeck Natural Law: The Tradition of Universal Reason and Authority in THE STRUCTURE AND PROCESS OF INTERNATIONAL LAW: ESSAYS IN LEGAL PHILOSOPHY DOCTRINE AND THEORY 17 (R. Macdonald, D. Johnston eds.,1986).
[37] See, e.g., South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), ICJ Reports 1966 250, 297 (1966) (dissenting opinion of Judge Tanaka). But see DR. H. AGARWAL, IMPLEMENTATION OF HUMAN RIGHTS COVENANTS WITH SPECIAL REFERENCE TO INDIA, 17-18 (1983) (arguing that human rights are universal because they arise out of the common equality of all persons).
[38] THOMAS AQUINAS, SUMMA THEOLOGICA, SECUNDA SECUNDAE PARTIS §57 (Right) available at: .
[39] Fr. Joseph M. de Torre, Human Rights, Natural Law, And Thomas Aquinas, VI Catholic
Social Scientist Review (2001) available at: .
[40] The condition of man (as hath been declared in the precedent chapter) is a condition of war of every one against every one, in which case every one is governed by his own reason, and there is nothing he can make use of that may not be a help unto him in preserving his life against his enemies." HOBBES, LEVIATHAN, Ch. XIV (1656). Hobbes also distinguishes between natural law and natural right.
[41] CICERO, THE REPUBLIC at III, XXII (Loeb Classical Library, 1950) available at:  (lat.).
[42] THOMAS AQUINAS, supra note 27.
[43] ARISTOTLE, POLITICS, Book I Part I1 (translated by Benjamin Jowett) (350 B.C.)
[44] The good life is, of course, defined by Aristotle as the end of life in political society. Id.
[45] For good critiques of the flaws and confusion which inherent in post-modem thought due to an erroneous axiology and epistemology see Dennis W. Arrow, Pomobabble: Postmodern New- speak and Constitutional "Meaning"for the Uninitiated, 96 MICH. L. R. 461 (1997); Dennis Arrow, Spaceball (Or, Not Everything that's Left is Postmodem), 54 VAND. L. REV. 2381
[46] Eric Engle , Universal Human Rights A Generational History,12 Ann. Surv. Int'l & Comp. L. (2006)  p, 254
[47] Richard L. Abel, Capitalism and the Rule of Law: Precondition or Contradiction? 28 LAW & Soc'y REV. 971,987 (joumal renamed: was 15 LAW & SOCIAL INQUIRY 685) (1990).
[48] "Human Rights ensure international security and prosperity" speech by the Foreign Secretary, Jack Straw, to the United Nations Commission on Human Rights, Geneva, 17 April 2002



 楼主| 发表于 1/17/2018 13:09:34 | 显示全部楼层
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The three generations of Human Rights

The notion of "three generations of  human rights" advanced by the French jurist Karel Vasak. Inspired by the  three normative themes of the French Revolution, they are: the first generation of civil and political rights (libertd); the second generation of economic,  social, and cultural rights (dgalitd); and the third generation of newly called  Solidarity rights (fraternif6).[1]

The First Generation. The first generation of civil and political rights derives primarily from the 17th- and 18th-century reformist theories noted above, which are associated with the English, American, and French revolutions. it conceives of human rights more in negative ("freedoms from") than positive ("rights to') terms; it favours the abstention rather than the intervention of government in the quest for human dignity, as epitomized by the statement attributed to H. L. Mencken that ". . . all government is, of course, against liberty."

In Articles 2-21 of the Universal Declaration of Human Rights, including freedom from racial and equivalent forms of discrimination; the right to life, liberty, and the security of the person; freedom from slavery or involuntary servitude; freedom from torture and from cruel, inhuman, or degrading treatment or punishment; freedom from arbitrary arrest, detention, or exile; the right to a fair and public trial; freedom from interference in privacy and correspondence; freedom of movement and residence; the right to asylum from persecution; freedom of thought, conscience, and religion; freedom or opinion and expression; freedom of peaceful assembly and association; and the right to participate in government, directly or through free elections. Also included is the right to own property and the right not to be deprived of one's property arbitrarily

The notion of liberty, a shield that safeguards the individual, alone and in association with others, against the abuse and misuse of political authority. This is the core value. This essentially Western liberal conception of human rights is sometimes romanticized as a triumph of Hobbesian-Lockean individualism over Hegelian statism.

The Second Generation. The second generation of economic, social, and cultural rights finds its origins primarily in the socialist tradition that was foreshadowed among the Saint-Simonians of early 19th-century France and variously promoted by revolutionary struggles and welfare movements ever since. In large part, it is a response to the abuses and misuses of capitalist development and its underlying, essentially uncritical, conception of individual liberty that tolerated, even legitimated, the exploitation of working classes and colonial peoples. Historically, it is counterpoint to the first generation of civil and political rights, with human rights conceived more in positive ("rights to) than negative ("freedoms from") terms, requiring the intervention, not the abstention, of the state for the purpose of assuring equitable participation in the production and distribution of the values involved.

In Articles 22-27 of the Universal Declaration of Human Rights, such as the right to social security; the right to work and to protection against unemployment; the right to rest and leisure, including periodic holidays with pay; the right to a standard of living adequate for the health and well-being of self and family; the right to education; and the right to the protection of one's scientific, literary, and artistic production. fundamentally, claims to social equality. Partly because of the comparatively late arrival of socialist- communist influence in the normative domain of international affairs, however, their internationalization of these rights has been somewhat slow in coming;

The Third Generation. a product, albeit one still in formation, of both the rise and the decline of the nation-state in the last half of the 20th century. in Article 28 of the Univerval Declaration of Human Rights, which proclaims that "everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized," it appears so far to embrace six claimed rights. Three of these reflect the emergence of Third World nationalism and its demand for a global redistribution of power, wealth, and other important values: the right to political, economic, social, and cultural self-determination; the right to economic and social development; and the right to participate in and benefit from "the common heritage of mankind" (shared Earth-space resources; scientific, technical, and other information and progress; and cultural traditions, sites, and monuments).

The other three third-generation rights-the right to peace, the right to a healthy and balanced environment, and the right to humanitarian disaster relief-suggest the impotence or inefficiency of the nation-state in certain critical respects.

At various stages of modern history-following the "bourgeois" revolutions of the 17th and 18th centuries, the socialist and Marxist revolutions of the early 20th century, and the anticolonialist revolutions that began immediately following World War II- the content of human rights has been broadly defined, not with any expectation that the rights associated with one generation would or should become outdated upon the ascendancy of another, but expansively or supplementally.

The first-generation proponents, inspired by the natural law and laissez-faire traditions, are partial to the view that human rights are inherently independent of civil society and are individualistic.

Conversely, second- and third-generation defenders often look upon first-generation rights, at least as commonly practiced, as insufficiently attentive to material human needs and, indeed, as legitimating instruments in service to unjust domestic, transnational, and international social orders hence constituting a "bourgeois illusion." Accordingly, while not placing first-generation rights outside their definition of human rights, they tend to assign such rights a low status and therefore treat them as long-term goals that will come to pass only with fundamental economic and social transformations, to be realized progressively and fully consummated only sometime in the future.

President  Franklin D. Roosevelt's Four Freedoms (freedom of speech and expression, freedom of worship, freedom from want, and freedom from fear) .The 1977 Law Day speech by then U.S. Secretary of State Cyrus R. Vance, in which he announced the U.S. government's resolve "to make the advancement of human rights a central part of our foreign policy" and defined human rights to include "the right to be free from governmental violation of the integrity of the person .... the right to the fulfillment of such vital needs as food, shelter, health care, and education, . .. [and] the right to enjoy civil and political liberties."

Freedom from arbitrary or unlawful deprivation of life, freedom from torture and from inhuman or degrading treatment and punishment, freedom from slavery, freedom from imprisonment for debt). the U.N. General Assembly has repeatedly confirmed, all human rights form an indivisible whole.

Because different people located in different parts of the world both assert and honour different human rights demands according to many different procedures and practices, these issues ultimately depend on time, place, institutional setting, level of crisis, and other circumstance.[2]

The Charter of the United Nations (1945) begins by reaffirming a "faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small." It states that the purposes of the United Nations are, among other things, "to develop friendly relations among nations based on respect for the principal of equal rights and self-determination of peoples ... [and] to achieve international co-operation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion .... ." And, in two key articles, all members "pledge themselves to take joint and separate action in cooperation with the Organization" for the achievement of these and related purposes. It is to be noted, however, that a proposal to ensure the protection as well as the promotion of human rights was explicitly rejected at the Charter-drafting San Francisco Conference establishing the United Nations.
Charter expressly provides that nothing in it "shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state .... " except upon a Security Council finding of a "threat to the peace, breach of the peace, or act of aggression."

The "domestic jurisdiction" clause does not apply because human rights, whatever isolation they may have "enjoyed" in the past, no longer can be considered matters "essentially within the domestic jurisdiction" of states.

The Universal Declaration of Human Rights (1948), the International Covenant on Civil and Political Rights (together with its Optional Protocol; 1976), and the International Covenant on Economic, Social and Cultural Rights (1976). Collectively known as the International Bill of Rights, these three instruments serve, among other things, as touchstones for interpreting the human rights provisions of the U.N. Charter.

All the important traditional political and civil rights of national constitutions and legal systems, including equality before the law; protection against arbitrary arrest; the right to a fair trial; freedom from ex post facto criminal laws; the right to own property; freedom of thought, conscience, and religion; freedom of opinion and expression; and freedom of peaceful assembly and association. Also enumerated are such economic, social, and cultural rights as the right to work, the right to form and join trade unions, the right to rest and leisure, the right to an adequate standard of living, and the right to education.

The right to nondiscrimination. Pursuant to the covenant, each state party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the covenant "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." The right to own property and the right to asylum, are not included. The right of all peoples to self-determination and the right of ethnic, religious, or linguistic minorities to enjoy their own culture, to profess and practice their own religion, and to use their own language.

This covenant is not geared, with the modest exception, to immediate implementation, the state parties have agreed only "to take steps" toward "achieving progressively the full realization of the rights recognized in the... Covenant," and then subject to "the maximum of [their] available resources."

The prevention and punishment of the crime of genocide; the humane treatment of military and civilian personnel in time of war; the status of refugees; the protection and reduction of stateless persons; the abolition of slavery, forced labour, and discrimination in employment and occupation; the elimination of all forms of racial discrimination and the suppression and punishment of the crime of apartheid; the elimination of discrimination in education; the promotion of the political rights of women and the elimination of all forms of discrimination against women; and the promotion of equality of opportunity and treatment of migrant workers.

The public advocacy of human rights as a key aspect of national foreign policies, made initially legitimate by the example of U.S. President Jimmy Carter;[3] As Nobel laureate and political dissident Andrey Sakharov once wrote from his internal exile in the Soviet Union: 'The ideology of human rights is probably the only one which can be combined with such diverse ideologies as communism, social democracy, religion, technocracy and those ideologies which may be described as national and indigenous. It can also serve as a foothold for those ... who have tired of the abundance of ideologies, none of which have brought... simple human happiness. The defense of human rights is a clear path toward the unification of people in our turbulent world, and a path toward the relief of suffering."[4]

According to Dworkin, principles operate at the heart of the legal system. Of particular importance are such concepts as liberty, fairness, and equality, concepts constitutionalized in the equal protection and due process clauses of the fourteenth amendment[5]

The typical Carter administration categorization of human rights  came to consist of the following:
            First, the right to be free from governmental violation of the integrity of the
         person. Such violations include torture; cruel, inhuman, or degrading treatment
        or punishment; arbitrary arrest or imprisonment; denial of fair public trial; and
        invasion of the home ...
            Second, the right to the fulfillment of such vital needs as food, shelter, health
        care, and education. The stage of a nation's economic development will obviously
        affect the fulfillment of this right. But we must remember that this right can be
        violated by a government's action or inaction-for example, when a government
        diverts vast proportions of its country's limited resources to corrupt officials or to
        the creation of luxuries for an elite, while millions endure hunger and privation.
            Third, the right to enjoy civil and political liberties: freedom of thought, of
        religion, of assembly; of speech, of the press; freedom of movement both within
        and outside one's own country; freedom to take part in government.[6]


[1] Burns H. Weston,Human Rights, 6 Hum. Rts. Q. (1984) p, 264
[2] Burns H. Weston,Human Rights, 6 Hum. Rts. Q. (1984) p, 268
[3] Burns H. Weston,Human Rights, 6 Hum. Rts. Q. (1984) p, 277
[4] Burns H. Weston,Human Rights, 6 Hum. Rts. Q. (1984) p, 283
[5] Joseph Cardinal Bernardin ,Seeking a Common Ground on Human Rights ,36 DePaul L. Rev. (1986-1987) p, 184
[6] Warren Christopher, "Human Rights: Principle and Realism," Speech before the American Bar Association, 9 August 1977 (Washington, D.C.: Bureau of Public Affairs, Department of State), pp. 1-2.



 楼主| 发表于 1/17/2018 14:39:05 | 显示全部楼层
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人权理论 Human Rights theory study

The growth of human rights, which has roughly paralleled economic development, is usually[1]described as having evolved over time in three successive waves,[2] from easily implemented[3] individual[4] negative claims, to freedom from the state, to positive collective[5] claims, to entitlements to state resources. At least one scholar has tried to draw a historical,  but   philosophically    interesting,  parallel  between  first- generation rights as expressions of liberty, second-generation rights as expressions of equality, and third-generation rights as expressions of solidarity.[6]

Louis Sohn traces the concept of three generations of human rights to Karel Vasak of UNESCO, whom Sohn quotes as the source of the term.[7] Sohn, quoting Vasak, believes that each generation of rights complements and completes the other. That, however, ignores the tension between individual property rights and collective-social rights. One can argue that the second-generation rights guarantee the substantive social minima precisely to preserve the first-generation property rights, namely by maintaining social stability, obviating the need for revolution. Be that as it may, Sohn points out that Vasak linked the idea of generational rights to the motto of the French revolution - liberte, egalite, fraternite. Nothing in the writings of Montesquieu  [8] or Rousseau,[9] or even Locke,[10] Hobbes,[11] or Kant,[12] support the theory that human rights would unfold in successive generations.[13]

The first wave of human rights in modernity is usually identified with the period of Scottish enlightenment[14] and the age of reason (the nineteenth century), expressed in the liberal revolutions[15] in America, France, and Latin America.[16] Rights asserted in these revolutions were essentially claims of the individual against state interference and to self-government. That is the first-generation rights (e.g., the freedom to worship, to peaceably assemble) were negative restrictions on state power.[17]

First- generation rights also tend to be procedural rights,[18] that is rules which determine the creation or application of substantive claims to material goods. Another common characteristic of the first generation of rights is that, historically, the first generation of human rights tends to see property rights as fundamental, individual and even absolute.[19] Later generations see property as relative and socially conditioned.[20]  First- generation rights can be summarised, roughly, as negative civil and political rights - "freedoms from" rather than "rights to." However, The right to worship as one chooses, to write or speak one's mind,[21] are not mere restrictions on state power - they are also assertions of the individual's power.

The second generation of rights arose during the industrial revolution and was contemporaneous with the political revolutions[22] of circa 1848- 1870.[23]Human rights were then seen, increasingly, as no longer merely negative rights to freedom from state interference, but rather as affirmative, substantive[24]social claims to state resources.[25] Second-generation rights were seen as the consequence of dialectical class struggle[26] and thus, to some extent, as collective rights.[27]  second-generation rights see property claims as social and relative. to increase social stability. Thus, its function ultimately to maintain property rights.

Are the rights of women a first-generation procedural right, a second-generation substantive right, or a third-generation collective right? Historically, claims to women's rights only began to be made around 1880, which would place them in the second generation. But those claims were procedural rights, such as the right to vote, or freedoms from state restrictions on employment and property ownership. So theoretically, at least, the early women's rights were first-generation rights - but historically they were only recognized just after the rise of the second generation of human rights circa 1880. Emancipation of black persons occurred in the mid-nineteenth century, circa 1860.[28] This was another claim to freedom from state power - the right not to be property, the right to vote, the right to speak. Racial inequality was de facto, and sometimes de jure, well into the twentieth century in the U.S.[29] and even (with resistance) into the 1980s in South Africa.[30]the delay in recognizing womens' rights, and the denial, at least until relatively recently, of the human rights of non- whites.

The third generation of human rights[31] arose in the post-war world. The recognition of third-generation rights is sometimes linked to the recognition of the limited international legal personality.[32] Third-generation rights are seen as essentially collective.[33] third-generation rights are said to include the right to peace,[34] the right to security,[35] the right to democracy, and the right to environmentally sustainable,[36]economic development.[37]

Origins of human rights seen in Aristotle's thought,[38] leading to unjust inequalities.[39] both women and non-whites were ignored by the individualist first-generation rights theory. Women were emancipated relatively late in history - in many cases only in the last century, and in some cases, women are not emancipated, most obviously in the Islamic world,[40] but elsewhere as well.

Theoretically, the first generation of human rights was shaped by liberalism, exemplified in the writings of Rousseau,[41] Locke,[42] and Kant,[43] though rooted much more deeply in the thought of Aristotle.[44] The second and third generations of rights were in contrast influenced by Marx,[45] Engels,[46] Lenin,[47] and Mao.[48]

Nazi death camps had operated entirely within the legal authority of the German state - a state at the very heart of western civilization.[49] Indeed, the leaders of National Socialism believed themselves to be agents of justice and civilization. As Hitler had said:
Should the Government act shamefully, the law is in no position to prevent it .... If the Government of a State is composed of indifferent individuals, the Body Judicial can do nothing to correct the mistakes of the legislators; but when the reins are in the hands of an honest and capable legislator, the law can support him wholeheartedly in his task of strengthening the bonds of the national community, and of thus laying the ideal foundation on which a healthy and dignified constitution can be built.[50]
To this end, such statutes as the Law for the Prevention of Progeny of the Genetically Unhealthy (1933), the Law for the Protection of German Blood and Honour (1935), and the Law for the Treatment of Community Aliens (1944) were created - developments that to many appeared the legislation of evil.[51] The world was thus confronted with hitherto inconceivable horrors, promulgated in the name of the law.

By a natural rights theory of justice, the aim of the Universal Declaration of Rights and Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the various other specific[52] and regional[53] human rights conventions was to stand above the laws of individual states and prevent the recurrence of the sort of atrocities that were committed by Germany. The drafters of these instruments felt that only an appeal to transcendent and objective rights held by humans as humans could deter similar horrors. In this, the philosophical tradition of natural law played a crucial role.

As Jerome Shestack states: “Natural rights theory makes an important contribution to human rights. It affords an appeal from the realities of naked power to a higher authority which is asserted for the protection of human rights. It identifies with human freedom and equality from which other human rights easily flow. And it provides properties of dependability, security, and support for a human rights system both domestically and internationally.[54]

The preamble of the Universal Declaration is unambiguous on this point when it states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."

The notion of human rights has grown from providing protection to the individual from the excesses of the organ of the state to providing positive conditions for the fulfillment of his needs and the realization of his personality.Human rights are fundamental in nature and ontological in character. They are fundamental because they are essential to man's fulfillment as a social being. They are ontological in character because they have an essential structure.

The first reflects the jurisprudential debate as to whether human rights should be positive (as with social and economic rights) or negative (as with civil and political liberties). [55] Another relevant jurisprudential debate raises the question whether human rights are natural rights (encompassing some universal and unchanging quality)[56] or whether they are constructed by different communities, thus constituting part of the positive law of a community (be it national or international).

Another theoretical approach which supports the statutory protection of human rights is shared by both liberal theorists and critical legal scholars. This is the view that human rights are contingent, in the sense that they reflect values that a given community considers to be fundamental. This can be called a social constructivism view of human rights and may be said to be the dominant theoretical view today, as opposed to the view that human rights are derived from some external source such as reason/nature. Of course, the social constructivist view differs between theorists and has radical and more modest versions (for example, some critical legal scholars claim that there is no possibility of grounding human rights in objective reason or rationality because there is no such thing,[57] whereas most liberal theorists endorse the view that human rights are founded on a community consensus view of human reason).[58] Nevertheless, despite these differences, most theorists support the view that human rights are subject to change: that in the future new human rights will emerge which will reflect new social values.[59]

Waldron asserts that human rights exist because they are founded on a constructed social consensus.[60] Dworkin's theory of rights also provides a good example of this approach. In Law's Empire,[61] he claims that human rights are part of an interpretative concept of law.[62] It is my contention that human rights, within the Dworkinian scheme of law, are products of social consensus and that they are protected via judicial interpretations as to their 'weight' (and consequent applicability) in different factual circumstances.[63]

In the work of Dworkin and Waldron is the view that law and human rights are founded upon social forces. This does not mean that human rights are not important, but it does mean that they are likely and subject to change and that their authority derives from the here and now: our current and most cherished values.


[1] But see: Dianne Otto, supra note 200, at 5-6. (Describing human rights as having developed in four generations - Otto's view is distinctly the minority view; Otto also describes the usual typology of first generation and second generation rights but subdivides third generation rights based on whether they arose out of the Soviet Bloc or Non-Aligned Movement.)

[2] Claire Moore Dickerson, supra note 60, at 1441-1442 (describes and refines the three- generation theory of human rights).

[3] John King Gamble, et al., supra note 116, at 36 (argues that first-generation rights are able to be easily and immediately implemented).

[4] But see: Claire Moore Dickerson, supra note 60, at 1444. Dickerson's ignores the indi- vidualist propertarian presumptions of first generation rights practice and claims of rights to collective bargaining which were raised only with the second generation of rights.

[5] John King Gamble, et al., supra note 116, at 36.

[6] .    "The first generation of political and civil rights, embodied in the Universal Declaration and the Covenant on Civil and Political Rights, are freedoms from state intrusion: libertg. The second generation furthers realisation of the first generation by guaranteeing minimum standards, demandable upon the state, of education and health, a liveable wage, decent working conditions, and social insurance for all persons: egalite. Finally, the third generation consists of rights which may be invoked against and demanded of the state. These tights require all the organs of society--individual, state, regional, and international--to cooperate in order for the rights to be realised: fraterniti." Jennifer A. Downs, supra note 69, at 364. I have found no evidence for this assertion in the writings of Diderot, Montesqieu or Rousseau.

[7] Louis B. Sohn, supra note 5, at 61-62.

[8] Charles Montesquieu, L'Esprit des Lois (1758)

[9] JEAN JACQUES ROUSSEAU, supra note 172

[10] JOHN LOCKE, supra note 174.

[11] HOBBES, supra note 20.

[12] IMMANUEL KANT, ZUM EWIGEN FRIEDEN (1795) available at IMMANUEL KANT, BEANTwORTUNG DER FRAGE: WAS IST AUFKLARUNG? (1784)

[13] I am, of course, open to contradiction and do not claim to have read the entire canon of every western enlightenment thinker. However, it seems unlikely that the enlightenment thinkers foresaw with such clarity the future development of human rights.

[14] R. Randall Kelso, A Post-Conference Reflection On Federalism, Toleration, And Human Rights, 40 S. Tex. L. REV. 811, 826-827 (two historical strands to moral reasoning about universal human rights: the Enlightenment natural law tradition, and the classic and Christian natural law tradition).

[15] .    Id.; see also, Louis B. Sohn, supra note 5, at 33. Kelso seems to ignore contemporary theorists of ius naturale such as Finnis.

[16] Because of this bourgeois influence on the idea of human rights some are sceptical as to whether human rights truly "liberates." This scepticism is understandable. Indeed as such critics of human rights note, rights are not merely a protection of the weak and innocent against the strong and powerful, they are also a vector of state power, and a subtle one at that. See, e.g., Wendy Brown, Rights and Identity in Late Modernity, in IDENTITIES, POLITICS AND RIGHTS 89 (Sarat and Kearns eds., 1995).

[17] U.S. CONST., amend. I (freedom of speech, worship), IV (no unlawful search or seizure),

[18] See e.g., U.S. CONST., amend. V, available at:  and Diclaration des droits de l'Homme et du Citoyen, arts. 7-9.
      « Article 7 - Nul homme ne peut 8tre accuse, arr~td ou ddtenu que dans les cas drterminds
      par la loi et selon les formes qu'eUe a prescrites. Ceux qui sollicitent, expedient, exdcu-
      tent ou font exdcuter des ordres arbitraires doivent etre punis ; mais tout citoyen appeld
      ou saisi en vertu de la loi doit obdir A l'instant ; il se rend coupable par la resistance. Arti-
      cle 8 - La loi ne doit dtablir que des peines strictement et dvidemment n cessaires,et nul
      ne peut 8tre puni qu'en vertu d'une loi dtablie et promulgure antrieurement au delit,
      et lgalement appliqude. Article 9 - Tout homme dtant prdsum6 innocent jusqu'A cc qu'il ait
      6td ddclar6 coupable, s'il est jugd indispensable de r'arr~ter, toute rigueur qui ne serait pas
      ndcessaire pour s'assurer de sa personne doit etre sdvirement rdprimde par la loi.

[19] Declaration des Droits de l'Homme et du Citoyen, art. 2, 17, available at U.S. CONST., amend. V

[20] E.g. "not every destruction or injury to property by governmental action has been held to be a 'taking' in the constitutional sense." Armstrong v. United States, 364 U.S. 40, 48 (1960).

[21] E.g., Declaration des Droits de I'Homme et du Citoyen, art. 10 & 11: Article 10 - Nul ne doit 8tre inquidt6 pour ses opinions, m~mes religieuses, pourvu que leur manifestation ne trouble pas l'ordre public 6tabli par la loi. Article 11 - La fibre communication des pensdes et des opinions est un des droits les plus prdcieux de lhomme ; tout citoyen peut donc parler, dcrire, imprimer librement, sauf h rdpondre de labus de cette libertd dans les cas ddterminds par la loi. available at: . Clearly, these are restrictions of the state's power - but they are often also affirmations of the individual's power.

[22] Louis B. Sohn, supra note 5, at 33.

[23] Claire Moore Dickerson, supra note 60, at 1444-1445 (describes three-generation rights theory).

[24] E.g., Verfassung der DDR, Artikel 25 ,,(1) Jeder Burger der Deutschen Demokratischen Republik hat das gleiche Recht auf Bildung. Die Bildungsstatten stehen jedermann offen. Das einheitliche sozialistische Bildungssystem gewihrleistet jedem BUrger eine kontinuierliche sozial- istische Erziehung. Bildung  und  Weiterbildung."  

[25] E.g. Landesverfassung der Freien Hansestadt Bremen Artikel 14: ,Jeder Bewohner der Freien Hansestadt Bremen hat Anspruch auf eine angemessene Wohnung. Es ist Aufgabe des Staates und der Gemeinden, die Verwirklichung dieses Anspruches zu fordern."      

[26] Praambel, Verfassung der DDR, 6 April 1968: ,,In Fortsetzung der revolutionahren Traditionen der deutschen Arbeiterklasse und gestiitzt auf die Befreiung vom Faschismus hat das Volk der Deutschen Demokratischen Republik in Ubereinstimiung mit den Prozessen der geschichtlichen Entwicklung unserer Epoche sein Recht auf sozial-okonomische, staatliche und nationale Selbstbes- timmung verwirklicht und gestaltet die entwickelte sozialistische Gesellschaft."

[27] .    Landesverfassung der Freien Hansestadt Bremen, vom 21 Oktober 1947 (Brem.GBI. S.
251). ,,Erschiittert von der Vemichtung, die die autoritdre Regierung der Nationalsozialisten unter MiBachtung der persdnlichen Freiheit und der Wtirde des Menschen in der jahrhundertealten Freien Hansestadt Bremen verursacht hat, sind die Burger dieses Landes willens, eine Ordnung des gesell-schaftlichen Lebens zu schaffen, in der die soziale Gerechtigkeit, die Menschlichkeit und der Friede gepflegt werden, in der der wirtschaftlich Schwache vor Ausbeutung geschUtzt und allen Arbeitswilligen ein menschenwiirdiges Dasein gesichert wird." Prdambel, Landesverfassung Bremen, available at: . A comparison of the preamble of the Bremer constitution and the preamble of the East German constitution reveals several interesting equivalences, parallels and divergences.

[28] E.g., The Emancipation Proclamation (1863)

[29] Plessy v. Ferguson, 163 U.S. 537 (1896) (segregated railways not unconstitutional, later
overruled) available at: ; Cumming v. Board of Ed. of Richmond County, 175 U.S. 528 (1899) (segregated education not unconstitutional, later overruled)

[30] For a listing of the principle apartheid legislation and history see BBC, The Story of Africa: Southern Africa (2003)

[31] Jennifer A. Downs, supra note 69, at 362 (citing Karel Vasak, Legal Adviser to the United Nations Educational, Scientific, and Cultural Organisation (UNESCO) and former director of the UNESCO Division of Human Rights and Peace, as the first to use the term 'third generation human rights').

[32] Comment, Developments In The Law - International Environmental Law: V. Institutional Arrangements 104 HARV. L. REV. 1580, 1600 (1991) (notes that individuals have limited rights and duties under international human rights law).

[33] Claire Moore Dickerson, supra note 60, at 1445-1446 (describes third generation rights as collective solidarity rights).

[34] Declaration on the Right of Peoples to Peace, G.A. res. 39/11, annex, 39 U.N. GAOR Supp. (No. 51) at 22, U.N. Doc. A/39/51 (1984)

[35] .   J. Oloka-Onyango, Human Rights And Sustainable Development In Contemporary Africa: A New Dawn, Or Retreating Horizons? 6 BUFF. HUM. RTS. L. REV. 39, 43 (2000).

[36] African Charter on Human and Peoples' Rights June, 26, 1981, O.A.U. Doc. CAB/LEG/67/3/Rev. 5, arts. 19-24 (entered into force Oct. 21, 1986), reprinted in 21 I.L.M. 58 (1982).

[37] 1986 Declaration on the Right to Development. Adopted by General Assembly resolution 41/128 of 4 December 1986, available at: . Also see, e.g., Isabella D. Bunn, The Right To Development: Implications For International Economic Law, 15 AM. U. INT'L L. REV. 1425, 1426 (2000) (arguing for "the emergence of the right to development.").

[38] Aristotle even recognizes that his arguments for natural slavery and the natural inequality of men and women are flawed, and tries to meet the objections. ARISTOTLE, POLITICs, Book   I,   at VL

[39] Aristotle clearly believed that some people were inherently destined for slavery. ARISTOTLE, POLITICs, Book   I,  pt. V.

[40] But see, Joelle Entelis, International Human Rights: Islam's Friend Or Foe? 20 FORDHAM INT'L L.J. 1251 (1997). Arguing that Algeria is an Example of the Compatibility of International Human Rights law and Islamic law regarding women.

[41] JEAN-JACQUES ROUSSEAU, Du CONTRAT SOCIAL OU PRINCIPES Du DROIT POLITIQUE (1752)

[42] JOHN   LOCKE, SECOND    TREATISE  ON  GOVERNMENT    (1690),

[43] Epistemologically, Kant's  Kritik  der  reinen  Vernunft  (1787) (available  at: ) is the more important work, though in intemational law  Kant is better known   for Zum  ewigen  Frieden (1795) (available at: ). His metaphysics and idealism led him to be rejected because only material facts are capable of scientific proof not opinions or subjective states of mind.

[44] "Liberal" is a much abused term, particularly by "neo" "liberals." To understand the origin and true meaning of the concept of liberality (and by consequence that "neo-liberal" thought is in fact illiberal) see ARISTOTLE, NICHOMACHEAN ETHICS, Book IV Ch. 1, supra note 303

[45] Karl Marx, Kapital L  MEW    23, 189f.309, 183, 789  (1867)

[46] Friedrich Engels, Anti-Diihring, MEW,  20,   95-99  (1887)  

[47] V.I. LENIN, The State and Revolution, in 25 COLLECTED WORKS, 381-492 (1918)

[48] MAO TSE-TUNG, On Policy (1940), in 2 SELECTED WORKS OF MAO TSE-TUNG, 441-49 (Foreign Languages Press, Peking 1965)

[49]  As Ian Kershaw has indicated, the planning of the "Final Solution" at the Wansee Conference, Jan. 20, 1942, and during the preceding month involve  the very highest levels of the German state. "[I]t is clear that not only the SS leadership but also the Foreign Office, the Ministry for the Occupied Eastern Territories and the Chancellor of the Fuhrer were in the picture": The Nazi Dictatorship, 103 (London: Edward Arnold, 1985). See also Christopher Browning, The Final Solution and the German Foreign Office (New York: Macmillan, 1978).

[50] Hugh Trevor Roper (ed.), Hitler's Table-Talk, 643 (Oxford: Oxford University Press, 1988).

[51] The official aim of the Community Alien Law was the denial of all social services to  those of "deficiency of mind or character." As the explanatory text stated: "The National Socialist view of welfare is that it can only be granted to national comrades who both need it and are worthy of it. In the case of community aliens who are only a burden on the national community welfare is not necessary."  Cited in Jeremy Noakes, "Social Outcasts in the Third Reich" in Richard Bessel  (ed.), Life in the Third Reich, 92 (Oxford: Oxford University Press, 1987).

[52]  See e.g., Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (1948); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly as an annex to resolution 39/46, UN GAOR, 39th Sess., 7o8 Plen. Mtg., UN Doc. A/39/7o8  (1984), text found at GAOR Supp. 51 at 197, UN Doc. E/CN.4/1984/72 (1984). In 1987 the Convention came into force. See also International Convention on the Elimination of All Forms of Racial Discrimination, 66o UNTS 195 (1966).

[53] See the European Convention for the Protection of Human Rights and Fundamental  Freedoms, 213 UNTS 221 (1948); American Convention on Human Rights, OASTS  No. 36 (1969); African Charter on Human and People s Rights, reprinted in 21 ILM  59 (1981).

[54] Shestack, "The Jurisprudence of Human Rights," in Theodor Meron (ed.), Human Rights in International Law: Law and Policy Issues, 78 (Oxford: Oxford University Press, 1984).

[55] For this distinction, see Wallington and McBride, op cit n 3, p 11. For a discussion of the development of these different kinds of human rights, see Palley, The United Kingdom and Human Rights (London: Stevens & Sons/Sweet & Maxwell, 1991) 1- 106 and, for a philosophical explanation, see Berlin,  'Two Concepts of Liberty' in Berlin (ed), Four Essays on Liberty (Oxford: Oxford University Press, 1969) 118 (cf Cranston, What Are Human Rights? (Oxford: Bodley Head, 1973) and Raphael (ed),Political Theory and the Rights of Man (London: Macmillan Press, 1967), chs 4, 5, 8 and 9).

[56] See Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) 198-230, and Hart, The Concept of Law (Oxford: Clarendon Press, 1961) 181-207.

[57] For example, Carty (ed), op cit n 63.

[58] For example, Mullen, 'Constitutional Protection of Human Rights' in Campbell, Goldberg, McLean and Mullen (eds), Human Rights: From Rhetoric to Reality (Oxford: Basil Blackwell, 1986) 29.

[59] For a recent discussion, see Nino, op cit n 14, pp 63- 82.

[60]Waldron (ed), Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (London: Methuen Press, 1987).  p 3: 'Even if it is true... that moral judgements are nothing but expressions of attitudes, it does not follow that it is mistaken or fallacious to express the attitudes we have, nor does it follow that it is wrong to give vent to an attitude which is categorical and implicitly universal in the scope of its application ... If meta-ethical realism is untenable, then rationally resolvable disputes in ethics become possible only between those who share certain fundamental values or principles in common.'

[61] London: Fontana Press, 1986.

[62] ibidpp 45-86.

[63] Cyril Adjei, Human Rights Theory and the Bill of Rights Debate, 58 The Modern Law Review Limited 1995,p10
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