“What do you understand by Human Rights? Discuss the relevance of Social Contract theories in the making of ideas of Human Rights?”
BACKGROUND ON HUMAN RIGHTS
Human Rights mean “The basic rights and freedoms to which all humans are entitled, often held to include the right to life and liberty, freedom of thought and expression, and equality before the law.” The protection of rights and freedoms of citizens and others within their jurisdiction is a fundamental duty of the state. The fundamental rights are defined and protected by law under a written constitution for majority democratic states. In United Kingdom the rights and freedoms have traditionally been protected either by individual Acts of Parliament passed to meet a particular need or by the judges in developing the common law. After the Second World War, the Council of Europe was formed. Under its authority the European Convention on Human Rights and Fundamental Freedoms were designed to guarantee the protection of basic rights against the state.
THE EMERGENCE OF THE CONSTITUTIONAL PROTECTION OF RIGHTS
To attempt to protect human rights on an International level began with the founding of the League of Nations after First World War. In peace treaties after the war, some laws were being made for the minorities to protect them. It was not after the Second World War the International community became convinced that there is an eminent need for protection and promotion of the human rights for the preservation of world peace. The United Nations helped out for the international quasi-legislative activity. In 1948, Universal Declaration was adopted which was supplemented by two implementing international covenants in 1966. These were International Covenants of Civil and International Covenant on Economic, Social and Cultural Rights. Together, this lead to the International Bill of Human Rights. Inspired by the international Bill of Human Rights and the covenants, many other regional conventions were made, for example the European Convention of Human Rights and Fundamental Freedoms 1950, The American Convention on Human Rights 1969 and the African Charter of 1987.
THE INFLUENCE OF THE CONVENTION BEFORE THE HUMAN RIGHTS ACT 1998
In the past, United Kingdom used to adopt the law in common to the treaties for the human rights for the citizens of the United Kingdom. Treaties was part of the international law and it did not have any jurisdiction in domestic legal order unless incorporated in the law. The courts regarded the Convention as an aid to interpretation but had no jurisdiction directly to enforce the rights and freedoms under the Convention.
THE HUMAN RIGHTS ACT 1998
The incorporation of Convention rights into domestic law under the 1998 Act put an end to the debate over whether or not to incorporate. The long running debate focused on three principal concerns, the criticisms that the Convention was outdated and it is not tailored specifically to British conditions; that the judiciary was ill equipped to assume the mantle of guardian of individual rights in the face of executive power and the concept of parliamentary sovereignty; there were concerns on how incorporation would affect the conventional balance between judges and the parliament. This was put at an end by the incorporation of Convention rights into the domestic law under the 1998 Act.
WHAT DOES HUMAN RIGHT DO?
The law does three simple thing:
1. It makes unlawful for a public authority, like a government, local authority or the police, to breach the convention rights unless an Act of parliament meant it could not have acted differently.
2. It means that the human rights cases could be dealt with in a UK court or tribunal. Until the Act, anyone who felt that their Rights under the Convention had been breached had to go to the European Court of Human Rights in Strasbourg.
3. It says that all UK legislation must be a given a meaning that fits with the Convention Rights, if that is possible. If a court says that it is not possible it will be up to parliament to decide what to do.
BACKGROUND ON SOCIAL CONTRACT THEORY
Social contract theory means an agreement, entered into by individuals, that results in the formation of the state or of organized society, the prime motive being the desire for protection, which entails the surrender of some or all personal liberties. This means 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. Therefore, the question of the relation between natural and legal rights are often the aspect of social contract theory.
This theory was created by Jean Jacques Rousseau who wrote a book about government reforms and how it should change to suit the people instead of the government and the theory raises the possibility that the need for social order and certain inherent constraints might provide us with a natural basis for morality. While it might seem that there are strong incentives for social anarchy without an outside objective (and perhaps supernatural) source of morality, according to some philosophers like Thomas Hobbes, the incentive is built into the social system by the very nature of our existing among each other. The need naturally exists for us to form some sort of agreement to treat each other with basic respect and follow certain basic rules. That is, we ?nd it most advantageous to form a social contract to base our lives in general and our moral judgments. Thomas Paine advances a social contract theory in which rights of the individual are given central importance. Paine was influenced by the both French and American Revolutions. In the Rights of Man, citizens give up their right to the state, but on a conditional basis. The state is placed in the position of trustee of the rights of man, and should that trust be broken, the citizen has the right to depose the government as the sovereign. Paine argues that man has natural rights, ‘those which appertain to man in right of existence’. These rights are both individualistic and civil. Individual category includes:
“….all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others.”
Civil category includes:
“Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation, some natural right pre-existing in the individual.”
The government is given the responsibility with the trust of the people and it should be governed by an ideal constitution which means, it should be protected from governmental abuse by a Bill of Rights. John Locke was a philosopher, who believed that people are a collective community who has some sense in delegating the power to the government but whenever a government is abusing its sovereign power then the government should be removed by these people. John Locke also argues that men comes from civil society and with their consent they should be ruled by government directed to ‘the peace safety, and public good of the people’. Hence the power that is given to the government is not absolute, but whilst in existence, the legislative power is the ‘supreme power’. Locke also said:
“If the people have set limits to the duration of their legislative, and made this supreme power in any person or assembly only temporary, it is forfeited; upon the forfeiture of their rules, or at the determination of the time set, it reverts to the society, and the people have the right to act as supreme, and continue the legislative in themselves or place it in a new form, or new hands as they think good.”
THE RELEVANCE OF SOCIAL CONTRACT THEORIES IN THE MAKING OF IDEAS OF HUMAN RIGHTS
Social contract theory and Human Rights have a very strong relevance with other. Social contract theory has helped in making ideas for Human Rights. Social Contract theory mainly deals with the protection of the rights of the citizens of the country and Human Rights also deals with the same purpose. However, since there was a key problem with the idea that people have no need to accept that they are part of such an agreement, and it is easily trivialized and scorned that is why to protect the fundamental rights of the citizens of the country by the way of protecting them through the country’s law the Human Rights Act was formed. This gave the citizens a permanent solution that their rights were protected by law and they did not have to be in any form of agreement such as known as the social contract theory.
Social contract theory deals with certain basic needs of a citizen of a country. The first factor that social contract theory deals with equality of need. This means every human being has certain basic needs in common such as food, clothing, and shelter in a country.
The second factor that social contract theory deals with is Scarcity. This means there is not a limited supply of food, clothing, and shelter just to name the essentials. Economists know this all too well and often de?ne economics as the study of the scarce allocation of resources which have alternative uses.
The third factor that it deals with is equality of human power. This means one person may have force on their side, but perhaps others have another advantage. In the end these differences tend to even out which creates a situation where everyone is at war against everyone else for the same scarce resources. Therefore, since the resources in the world are limited and scarce there should be an equality of each and every individual when it comes to their power so that the scarce resources are enough for everyone and no one is deprived.
And the last factor for social contract theory is limited altruism. This means one solution to the problem is to rely on the kindness of strangers, i.e. principle or practice for the welfare of others.
However, all these factors together created problems in the absence of any social order or moral rules and therefore to prevent all the problems that can arise from scarcity, equality of need, inequality of human powers and limited altruism the Human Rights Act was enacted in the countries to grant the citizens or each individuals the fundamental rights of a human being and so that they were not deprived as a way of rule of the country’s constitution.
Barnett, H. (2011). Constitutional & Administrative Law. London and New York: Routledge.