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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”
Introduction :-
The basic idea of Human Rights, is the rights being inherited by us since we were born as a human being. These are rights that no one can separate us from or even deprive us from.
Human rights are moreover based on the principles of respect on individuals. The fundamental/basic idea is, each person is moral and rational being who deserves to be treated equally, fairly, and with dignity. These are called human rights because they are known universally. It is not something a specific group or cast etc are entitled to it, but Human Rights are the rights that everyone is entitled to no matter the whatever our nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. They will enjoy this right simply because they are alive in this world.
In ages past, there were no human rights. Then the idea emerged that people should have certain freedoms. And that idea, in the wake of World War II, resulted finally in the document called the Universal Declaration of Human Rights and the thirty rights to which all people are entitled.
The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasized in the Universal Declaration on Human Rights in 1948, after World War 2 that has been revised and more spread over in numerous international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.
The Declaration of Human Rights:-
The declaration of human rights was first adopted b the UN general assembly on 10th December 1948, which was a result of the results of the 2nd World War. With the end of the war and also the creation of the United Nations, the international community has sworn to eradicate the atrocities that people had to experience during the war. The world leaders decided to complement the UN charter with a road map to guarantee the rights of every individual person everywhere around the world. the documents that were considered the Bible of the Universal Decleration of Human rights, was taken up at the starting session of the General Assembly in 1946. The assembly reviewed the drafts of the Declaration on Fundamental Human Rights and Freedoms and passed it on to the Economic and Social Council for reference to the Commission on Human Rights for consideration during the preparation of an international bill of rights. The commission for started on 1947 authorized the members to prepare what it termed “a preliminary draft International Bill of Human Rights”
The Commission on Human Rights was made up of 18 members from various political, cultural and religious backgrounds. Eleanor Roosevelt, widow of American President Franklin D. Roosevelt, chaired the UDHR drafting committee. With her were René Cassin of France, who composed the first draft of the Declaration, the Committee Rapporteur Charles Malik of Lebanon, Vice-Chairman Peng Chung Chang of China, and John Humphrey of Canada, Director of the UN’s Human Rights Division, who prepared the Declaration’s blueprint. But Mrs. Roosevelt was known to be the man driving force for the Declaration’s adoption.
The Articles of the Human Rights:-
In Article 1, it has said that, all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
In Article 2 it has mention that, Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Besides, distinction should not made based on the political, jurisdictional or international position of the country or territory to which a person belongs, whether it is self-governing, faith, non-self-governing or under any further restriction of dominion.
Universal human rights usually expressed and definite by law, in the forms of agreements, usual international law, universal values and other sources of international law. International human rights law places down pressure of Governments to act in certain ways or to cease from convinced proceed.
How Does International Law Protect Human Rights?
International human rights law lays down obligations which States are bound to respect. By forming different parties towards international treaties, States assume their obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights.
Through ratification of international human rights treaties, Governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principal legal protection of human rights guaranteed under international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.
Foundation for Our Common Future
Over the years, the commitment has been translated/transformed into law, whether in the forms of treaties, customary international law, general principles, regional agreements and domestic law, through which human rights are expressed, and guaranteed. Indeed, the UDHR has motivated more than 80 international human rights treaties and declarations, a great number of regional human rights conventions, domestic human rights bills, and constitutional provisions, which together constitute a comprehensive legally binding system for the promotion and protection of human rights.
Building on the achievements of the UDHR, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights entered into force in 1976. The two Covenants have developed most of the rights already enshrined in the UDHR, making them effectively binding on States that have ratified them. They set forth everyday rights such as the right to life, equality before the law, freedom of expression, the rights to work, social security and education. Together with the UDHR, the Covenants comprise the International Bill of Human Rights.
Over time, international human rights treaties have become more focused and specialized regarding both the issue addressed and the social groups identified as requiring protection. The body of international human rights law continues to grow, evolve, and further elaborate the fundamental rights and freedoms contained in the International Bill of Human Rights, addressing concerns such as racial discrimination, torture, enforced disappearances, disabilities, and the rights of women, children, migrants, minorities, and indigenous peoples.
Universal Values
The core principles of human rights first set out in the UDHR, such as universality, interdependence and indivisibility, equality and non-discrimination, and that human rights simultaneously entail both rights and obligations from duty bearers and rights owners, have been reiterated in numerous international human rights conventions, declarations, and resolutions. Today, all United Nations member States have ratified at least one of the nine core international human rights treaties, and 80 percent have ratified four or more, giving concrete expression to the universality of the UDHR and international human rights.
The Social Contract Theory:-
In legal terms- Social contract theory is based on the idea of a contractual agreement between the individual and the state, under which the power of the sovereign is justified by a hypothetical social contract in which the people agree to obey in all matters in return for a guarantee of peace and security, which they lack in the warlike “state of nature” posited to exist before the contract is made.
According to Dictionary- The agreement among individuals by which society becomes organized and invested with the right to secure mutual protection and welfare.<href=”#_ftn2″ name=”_ftnref2″ title=””>[2]
Also various philosophers have interpreted social contract theory. For example, John Locke believed that rulers also were bound to protect private property and the right to freedom of thought, speech, and worship. Jean-Jacques Rousseau didn’t believe that in the state of nature people are warlike, but are undeveloped in reasoning and morality.
Human Rights as a Social Contract Theory:-
Under the theory of the social contract, those rights which the individual brings with him upon entering the social contract are natural, and those which arise out of the social contract are contractual. Those contractual rights arising out of the constitution are constitutional rights. However, natural rights are also constitutional rights.
The fundamental natural rights are life, liberty, and property. However, it is necessary to be somewhat more specific as to what these rights include. Therefore, constitution framers usually expand them into such rights as the right of speech and publication, the right to assemble peaceably, the right to keep and bear arms, the right to travel over public roadways, and so forth. The exercise of such natural rights may be restricted to the extent that they come into conflict with the exercise of the natural rights of other members of society, but only to the minimum degree needed to resolve such conflict.
Such natural rights are inalienable, meaning that a person cannot delegate them or give them away, even if he wants to do so. That means that no constitutional provision which delegated to government at any level the power to take away such rights would be valid, even if adopted as an amendment through a proper amendment process. Such rights apply to all levels of government, federal, state, or local. Their enumeration in the constitution does not establish them, it only recognizes them. Although they are restrictions on the power of government, the repeal of the provisions recognizing them would not remove the restrictions or allow the delegation of any power to deny them. The people do not have that power, and therefore cannot delegate it to government.
Yet constitutions recognize the power to deprive persons of their rights under due process of law. Strictly speaking, a person may not be deprived of such rights in the sense of taking them away. Natural rights are never lost. Their exercise can, however, be restricted or, to use the proper legal term, disabled. While some might question the practical distinction between losing a right and having it disabled, that distinction is important. A right which is disabled under due process may also be re- enabled by the removal of that disability, and the disability is removed if the social contract is broken and persons return to the state of nature.
Due process is not defined in the written U.S. Constitution, which points out the fact that the constitution consists not only of the written document itself, but the body of court precedents, legal definitions and traditions, and prevailing civic processes as of the date the written document was ratified, which is called pre-ratification Common Law. It also includes the commentaries and records of the debates of the framers and ratifiers insofar as they provide guidance on how to interpret the provisions of the written document. The constitution is further expanded to include the body of court precedents since ratification which interpret its provisions, called post-ratification common law, but only insofar as those court precedents are consistent with the written document, pre-ratification Common Law, and the original intent of its framers and ratifiers.
Certain rights, therefore, such as the rights of due process and the right to vote, are contractual. They have no meaning in a state of nature, only within the context of a civil society. And they are defined within Common Law rather than in the written Constitution.
Due process requires, among other things, that any disablement of a right be done only by a court of competent jurisdiction in response to a petition to do so, and after arguments and evidence are heard from all sides to support or refute the granting of such petition. The only rights which may be disabled by statute and without a specific court proceeding are the rights of majority, or adulthood. Common Law recognizes that persons are born with disabilities of minority, and constitutions and laws typically define some age at which those disabilities are removed, such as age 18 in the United States for purposes of voting, although it may allow for such disabilities to be removed earlier, or retained past the usual age of majority, upon petition to do so.
Due process therefore requires that each and every right which is to be disabled be argued separately on its merits, and the ruling or sentence of the court explicitly disabled each such right.
This requirement therefore comes into conflict with legislation which prescribes the disablement of certain rights for persons convicted of certain types of crimes, such as the right to vote or to keep and bear arms, without that disablement being made an explicit part of the sentence or the sentencing hearing. Such legislation must be considered unconstitutional, for even though there may be due process in the case which results in the explicit disablement of the rights to certain liberties or properties, those disablements are openly stated and argued, and the statutory inclusion of other disablements that are not made explicit or separately argued is a denial of due process.
OPINIONS OF THE PHILOSOPHER
In 19th century Thomas Hobbes<href=”#_ftn3″ name=”_ftnref3″ title=””>[3] founded a social contract theory of legal positivism on what all men could have the same estimation on, what they liked or look for happiness was subjected to advice, other than if the most important fear of men is a aggressive death at the hands of another, a natural law was how a rational human could promise them to stay alive and flourish. In Hobbes’s opinion, the only way, which could achievement or hassled them, was to submit men to the instructions of the sovereign. In this lay the foundations of the theory of a social contract between the governed and the governor. John Locke included natural law into numerous of his theories and philosophy.
The French philosopher Jean-Jacques Rousseau suggested the survival of a hypothetical social contract where a group of free individuals agrees for the sake of the common good to form organizations to govern themselves. This repeated the earlier statement by Tomas Hobbes that there is a contract between the government and the governed – and guide to John Locke’s theory that a failure of the government to protected rights is a failure, which give good reason for the removal of the government. However, Rousseau supposed and trusts in the kindness of men which Hobbes and Locke let down it.
Locke did not agree with Hobbes’ instruction around, saying that if the ruler went against natural law and failed to defend “life, liberty, and prosperity,” people could justifiably overthrow the existing state and create a new one. Locke defend that all human have rights and possessions, the first possession of every men is of course his body, and all men in here in his work and have the possibility to take advantage of the payoff.
Conclusion:-
Human rights are inseparable along with mutually dependent. Everything depends ahead the right to one’s existence; however, the right to one’s life is insufficient if a person imprisoned or incorrectly imprisoned. In addition, to be free is a unkind pretense if one lives on the perimeter of hunger. Human rights need to enjoy in their entirety, as an inseparable and mutually dependent entirely.
Bibliography
[1] Jean-Jacques Rousseau, “Perpetual Peace,” in Roger D. Masters and Christopher Kelly ed., Collected Writings of Rousseau (Dartmouth College Press, 2005) Vol. 11, pp. 48-9.
[2] Rousseau, The Social Contract in The Collected Writings of Rousseau, Vol. 4, p. 147.
[3] For Filmer’s argument, see Robert Filmer, Filmer: “Patriarcha” and Other Writings (Cambridge University Press, 1991). John Locke’s critique of Filmer’s argument can be found in the First Treatise on Government in Locke: Two Treatises of Government (Cambridge University Press, 1988).
[4] Rousseau, “Perpetual Peace,” p. 42.
[5] Rousseau, “Perpetual Peace,” p. 42.
[6] Immanuel Kant, The Metaphysics of Morals (Hackett, 1999) p. 151.
[7] Kant, Metaphysics of Morals, p. 115
[8] Kant, “Perpetual Peace,” p. 115.
[9] Kant, “Perpetual Peace,” p. 133.
[10] John Rawls, The Law of Peoples (Harvard University Press, 199) p. 4.
[11] Rawls, The Law of Peoples, p. 5.
[12] John Rawls, A Theory of Justice (Harvard University Press, 1971) p. 378.
[13] For this argument, see David Hume, “Of the Original Contract,” in Essays: Moral, Political, Literary (Liberty Fund, 1985)
<href=”#_ftnref1″ name=”_ftn1″ title=””>[1]http://www.humanrights.com/what-are-human-rights.html
<href=”#_ftnref2″ name=”_ftn2″ title=””>[2]http://www.thefreedictionary.com/Social+contract+theory
<href=”#_ftnref3″ name=”_ftn3″ title=””>[3]See, http://oregonstate.edu/instruct/phl201/modules/Philosophers/Hobbes/hobbes_social_contract.html