Discuss the relevance of Social Contract theories in the making of ideas of Human Right

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Topic: “What do you understand by Human Rights? Discuss the relevance of Social Contract theories in the making of ideas of Human Rights?”

Human Rights: Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated and interdependent.

Many of the basic ideas that animated the human rights movement developed in the aftermath of the World War II and the atrocities of The Holocaust, culminating in the adoption of the Universal Declaration of Human Rights in Paris by the United Nations General Assembly in 1948. [1] The true forerunner of human rights discourse was the concept of rights which appeared as part of the medieval Natural law tradition that became prominent during the Enlightenment with such philosophers as Locke, Francis, and Jean-Jacques Burlamaqui, and featured prominently in the political discourse of the American Revolution and the  French Revolution.

Social contract theory: In political philosophy the social contract or political contract is a theory or model, originating during the Age of Enlightenment, that typically addresses the questions of the origin of society and the legitimacy of the authority of the state over the individual. [4] Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority), in exchange for protection of their remaining rights. The question of the relation between natural and legal rights, therefore, is often an aspect of social contract theory. The Social Contract, created by Jean Jacques Rousseau was a book about government reforms and how it should change to suit the people instead of the government

History of Social Contract Theories and Human rights:

Social Contract Theory:

The concept of the social contract comes from Socrates, as described by Plato in Crito.

“Then the laws will say: ‘Consider, Socrates, if we are speaking truly that in your present attempt you are going to do us an injury. For, having brought you into the world, and nurtured and educated you, and given you and every other citizen a share in every good which we had to give, we further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him. None of us laws will forbid him or interfere with him. Any one who does not like us and the city, and who wants to emigrate to a colony or to any other city, may go where he likes, retaining his property. But he who has experience of the manner in which we order justice and administer the state, and still remains, has entered into an implied contract that he will do as we command him. And he who disobeys us is, as we maintain, thrice wrong; first, because in disobeying us he is disobeying his parents; secondly, because we are the authors of his education; thirdly, because he has made an agreement with us that he will duly obey our commands; and he neither obeys them nor convinces us that our commands are unjust; and we do not rudely impose them, but give him the alternative of obeying or convincing us;—that is what we offer, and he does neither”

Human Rights:

Although ideas of rights and liberty have existed in some form for much of human history, they do not resemble the modern conception of human rights. According to Jack Donnelly, in the ancient world, “traditional societies typically have had elaborate systems of duties… conceptions of justice, political legitimacy, and human flourishing that sought to realize human dignity, flourishing, or well-being entirely independent of human rights. These institutions and practices are alternative to, rather than different formulations of, human rights”. The modern sense of human rights can be traced to Renaissance Europe and the Protestant Reformation, alongside the disappearance of the feudal authoritarianism and religious conservatives that dominated the Middle. One theory is that human rights were developed during the early Modern period, alongside the European secularization of Judeo-Christian ethics. the most commonly held view is that concept of human rights evolved in the West, and that while earlier cultures had important ethical concepts, they generally lacked a concept of human rights. For example, McIntyre argues there is no word for “right” in any language before 1400.Medieval charters of liberty such as the English Magna Carta were not charters of human rights, rather they were the foundation and constituted a form of limited political and legal agreement to address specific political circumstances, in the case of Magna Carta later being recognised in the course of early modern debates about rights.[8] One of the oldest records of human rights is the statute of Kalisz (1264), giving privileges to the Jewish minority in the Kingdom of Poland such as protection from discrimination and hate speech.

The earliest conceptualization of human rights is credited to ideas about natural rights emanating from natural law. In particular, the issue of universal rights was introduced by the examination of extending rights to indigenous peoples by Spanish clerics, such as Francisco de Vitoria and Bartolomé de Las Casas. In the Valladolid debate, Juan Ginés de Sepúlveda, who maintained an Aristotelian view of humanity as divided into classes of different worth, argued with Las Casas, who argued in favor of equal rights to freedom of slavery for all humans regardless of race or religion. In Britain in 1683, the English Bill of Rights (or “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”) and the Scottish Claim of Right each made illegal a range of oppressive governmental actions.

Two major revolutions occurred during the 18th century, in the United States (1776) and in France (1789), leading to the adoption of the United States Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen respectively, both of which established certain legal rights. Additionally, the Virginia Declaration of Rights of 1776 encoded into law a number of fundamental civil rights and civil freedoms.

All societies have rules or laws and require their members to obey them for the peace and good order of that society. In this regard, philosopher John Rawls assumes in his book A Theory of Justice that a society is defined by its rules. He writes that a society is “a more or less self-sufficient association of persons who in their relations to one another recognize certain rules of conduct as binding and who for the most part act in accordance with them.” But why should any free and independent person consciously and willingly choose to obey any king or chieftain or the laws of a society? To answer this question, we need to understand that there are essentially two sources for the duty to obey such laws. The first is authority; the second is mutual consent.

In Europe, the authoritarian doctrine of the divine right of kings, evolving out of the middle Ages and continuing into the eighteenth century, asserted that kingly authority was derived from the higher authority of God and therefore could not be called into question by either parliament or people. In many other cultures rulers were seen as gods themselves or as direct descendants of gods. Thus obedience to such figures of authority, usually through obedience to their duly ordained subordinates, was seen as a basic duty.

Mere obedience, however, is not necessarily an ethical act. When obedience is either enforced through conquest or slavery, or is simply the result of blind and unthinking compliance with the law, there is no o free, intelligent, and conscious choice involved; there is no consent. To yield to the strong is an act of prudence, not an act of respect for the law. Only when submission to the authority of a society is learned and accepted as a thoughtful, deliberate choice does acceptance of this duty become an ethical act.

That is where the second source of the duty to obey the laws comes from: negotiated consent to be so obligated–a consent mutually given and accepted by all members in the society. As Samuel Johnson observed in his 1766 Letter to Boswell: “Life can’t be subsist in society but by reciprocal concessions.”

This concept of the mutual consent of the governed became the basis for the denunciation of the divine right of kings at the dawn of the European Enlightenment; it was the first enunciated philosophically by John Locke in 1690 in his Two Treatises on Civil Government, in which he also developed his theory of self-government and the social contract. He wrote:

Men being, as has been said, by nature all free, equal and independent, no one can be put out of his estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties and a greater seer security against any that are not of it…. When any number of men has so consented to make one community or government, they are thereby presently incorporated, and make one body politic.

After that, majority rule prevails.

Basic duties are natural duties since they arise from our nature as human beings. However, these natural duties are not perfected until we form ourselves into social groups, since duties are relationships. For example, the duty not to kill each other becomes a duty only with the formation of the social contract. Before that, it is an inchoate duty. Basic or natural duties are the substantive and necessary provisions of the social contract, but not all the duties in our society are basic. How, then, do we discover which among our many duties are basic? We use the reasonable person test: a duty is a basic duty and a substantive provision of the social contract if reasonable people with equal bargaining power and no knowledge of how the duty will affect them will unanimously agree to it everywhere and at all times

When governments are formed and laws are made, the social contract becomes positive law–the laws of a particular society. It is similar to an oral contract becoming a written agreement. However, positive law must conform to the agreements of the social contract if they are to be just. Basic natural duties necessarily imposed by the social contract must continue under the laws of every society and government, Organic documents or constitutions must respect basic duties of the social contract because, as we shall see, it is these basic natural duties that give rise to natural or human rights.

What is a right? A right is one side of a relationship; your right is the duty of another. What is a human right? A human right is a relationship arising from our nature as human beings that entitles an individual to certain conduct from all others. It is a contractual right flowing from the social contract that imposes upon all others the necessary and universal duty to act or refrain from acting in a certain way. A human right, however, should not be confused with a possession, like an apple or a house. Nor should it be equated with a human power, like the power to think or see or live. Rather, a human right is a relationship between an individual and all others that entitles a person to certain conduct from every other person and from society. You have the power of life, but the right to your life is created when all others promise not to kill you.

Human rights, or natural rights, are the flip side of the natural duties of the social contract. They are the quid pro quo of the social contract. Human rights are the benefits of negotiated by our theoretical reasonable persons and received by the each of them as a result of their agreement to accept the natural duties imposed by the social contract. Human rights are the consideration for the obligations assumed under that fundamental agreement.

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· Freeman, Michael (2002). Human rights: an interdisciplinary approach. Cambridge: Polity Press. ISBN 978-0-7456-2355-9.

· Doebbler, Curtis F. J (2006). Introduction to international human rights law. Cd Publishing. ISBN 978-0-9743570-2-7.

· Shaw, Malcom (2008). International Law (6th ed.). Leiden: Cambridge University Press. ISBN 978-0-511-45559-9.

· Ishay, Micheline R. (2008). The history of human rights : from ancient times to the globalization era. Berkeley, Calif.: University of California Press. ISBN 0-520-25641-7.

· Brownlie, Ian (2003). Principles of Public International Law (6th ed.). OUP. ISBN 0-19-955683-0.

· Glendon, Mary Ann (2001). A world made new : Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House. ISBN 978-0-679-46310-8.

· Sepúlveda, Magdalena; van Banning, Theo; Gudmundsdóttir, Gudrún; Chamoun, Christine; van Genugten, Willem J.M. (2004). Human rights reference handbook (3rd ed. rev. ed.). Ciudad Colon, Costa Rica: University of Peace. ISBN 9977-925-18-6.4

· J. W. Gough. The Social Contract. Oxford: Clarendon Press. 1936.

· Harrison, Ross. Hobbes, Locke, and Confusion’s Empire: an Examination of Seventeenth-Century Political Philosophy. Cambridge University Press, 2003.

· Oeuvres complètes, III, 364; The Collected Writings of Rousseau, IV, 141

· Gerald Gaus and Shane D. Courtland, 2011, “Liberalism”, 1.1, The Stanford Encyclopedia of Philosophy.

· “Social Contract Theory [Internet Encyclopedia of Philosophy]”. Iep.utm.edu. 2004-10-15. Retrieved 2011-01-20.

· “Contractarianism (Stanford Encyclopedia of Philosophy)”. Plato.stanford.edu. Retrieved 2011-01-20.

· Riley, Patrick. The Social Contract and Its Critics, chapter 12 in The Cambridge History of Eighteenth-Century Political Thought. Eds. Mark Goldie and Robert Wokler. Vol 4 of The Cambridge History of Political Thought. Cambridge University Press, 2006. Pp. 347–375.

· Pufendorf, Samuel, James Tully and Michael Silverthorne. Pufendorf: On the Duty of Man and Citizen according to Natural Law. Cambridge Texts in the History of Political Thought. Cambridge University Press 1991.

· Rousseau, Jean-Jacques. The Social Contract, or Principles of Political Right (1762)

1. <href=”#_ftnref1″ name=”_ftn1″ title=””>[1] Freeman 2002, pp. 15–17

  1. Wood, The Radicalism of the American Revolution(1992)
  2. The French revolution and human rights by Lynn Avery H.
  3. .” J. W. Gough, The Social Contract (Oxford: Clarendon Press, 1936), pp. 2–3