Private: International Human Rights Law Content
Philosophers Views( Hobbes, Locke,etc)
Existence of Human Rights:
- The earliest rules about standards of behaviour among people dealt with prescribing or prohibiting conduct that experience proved was likely to lead to conflict.
- The great religions of the world – Hinduism, Christianity, Buddhism, Islam, and others – have all sought to establish comprehensive, coherent moral codes of conduct based on divine law.
- The Natural or Divine Law
- Social Contract
- State Sovereignty
- But until the 17th century such attempts to establish a framework for such rules, laws and codes, whether in social, legal, secular or theological debate, emphasised duties and privileges that arose from peoples’ status or relationships, rather than abstract rights that, philosophically, preceded or underlay those relations or laws.
- attention moved from social responsibilities to the individual’s needs and participation.
- It was seen as fundamental to the well-being of society, under the influence of philosophers such as Grotius, Hobbes and Locke, Then, these rights were called ‘natural’ rights, or ‘the rights of man’.
- These natural or moral rights became part of the political agenda.
- for Plato, the gods are not absolute, but their authority comes from their participation in an ultimate order, which is here called “the just”
- This order is what justifies the religious claims of the gods on humans the same way it justifies the moral claims of humans on other humans.
- Developing this notion in the Republic, Plato designates as “ideas,” not in the modern sense of being produced by human minds, but in the ancient sense of being realities which are capable of being thought by human minds in acts of truly intelligent discovery.
- The principles are not subject to the control of kings (representative of god). That is why natural law is much more than what is postulated by human reason, which could just as easily take it away as give it.
- Human reason intends this divine order. Human reason is discovered, not invented. It alone is autonomous.
Aristotle calls this reality both “the divine” and “the God”. Common to Plato, Aristotle admits that “nature” is divine.
- Since human rationality and human sociality are two sides of the same coin, this access to the cosmic order is of immediate political significance.
- Only a society whose law is based on nature is worthy of the moral allegiance of any rational person.
Hobbes‘ political writings set out the rational grounds for obedience to authority; while maintaining that those grounds consisted in the natural rights of individuals, prior to and outside of the existence of the state. The state of nature was characterized by a fundamental equality:
According to Locke “the State of Nature has a Law of Nature to govern it,” which is the reason; and that reason “teaches all Mankind . . . that . . . no one ought to harm another in his Life, Health, Liberty, or Possessions.”
Reason, as law of nature, likewise indicates that everyone is bound to preserve himself and to preserve the rest of mankind as well. Since the “Fundamental Law of Nature” dictates that man should be preserved, he has a right to destroy anyone who threatens him with destruction or enslavement.
–Locke says that “men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent.”
He says that “the Freedom then of Man and Liberty of acting according to his own Will, is grounded on his having Reason, which is able to instruct him in that Law he is to govern himself by . . . .” Thus, he says, “we are born free, as we are born Rational.
- A state of nature as the origin of rights and consent as the basis for legitimate sovereignty.
“Man is born free, and everywhere is in chains,” he writes in the beginning of On the Social Contract. “Since no man has a natural authority over his fellow man,” Rousseau writes, “and since force does not give rise to any right, conventions, therefore, remain the basis of all legitimate authority among men.”
- The transition from the state of nature to the civil state takes place when each individual alienates his rights to the whole community, which is expressed in the general will.
- the state of nature was characterized by simplicity and innocent goodness.
- In civil society, the individual alienates his rights to the community as a whole: “Each of us places his person and all his power in common under the supreme direction of the general will; and as one we receive each member as an indivisible apart of the whole.”
- Sovereignty is then “merely the exercise of the general will,” and the sovereign is the “collective being” that the general will represent. Since the citizen participates in the general will by virtue of his membership in the body politic, the citizen is–in some sense–the sovereign. However, the exercise of sovereign power concerns only public (civil) matters.
- The social contract, according to Rousseau, involves a transformation from inequality to equality.
- Within the social contract tradition, the claim that individuals possess rights prior to and apart from the state is the basis for determining both the legitimacy and the limitations of the acts of the state. At the same time, the state is the only body which enforces and protects one’s rights.
- For the social contract theorists, the individual in the state of nature had “rights.” But this did not mean that he or she would be able to unlimited exercise or act on those rights.
- “having” natural rights to everything did not mean that an individual actually had everything.
- To have rights, after the formation of society, means that there are limits on the acts of the sovereign and the individual is entitled to take certain actions against the sovereign if these limits are violated.
Hugo Grotius is considered to be the founder of modern natural right theory as well as the founder of modern international law
- Grotius’s statement that “the Mother of Right, that is, of Natural Law, is Human Nature.”
- There is a body of law adequate for the basic normative needs of any human society.
- This body of law is independent of any divine command, being accessible to human reason.