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“What do you understand by Human Rights? Discuss the relevance of Social Contract theories in the making of ideas of Human Rights.”
Understanding human rights
Human rights are rights inherent to all human beings, irrespective of nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. Human beings are equally entitled to all rights without discrimination. To put concisely, human rights refer to the “basic rights and freedom to which all humans are entitled. Examples of rights and freedoms include civil and political rights, right to life in liberty, freedom of expression, and equality before the law, the right to be a member of a cultural group, the right to food, to work or to receive an education.
Universal human rights are often expressed and guaranteed by law, in various forms. International human rights law lays down obligations of Governments of all countries to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and fundamental freedoms of individuals or groups.
Various bodies both international and national strive to preserve these rights for the betterment and justice of the world’s citizens.
The UN by its proclamation of its Articles of Human Rights upholds a common standard of achievement for all peoples and all nations to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance of these rights.
Characteristics of human rights
Human rights are universal since the reciprocal basic natural duties established by the social contract are general in their application to all people and at all times. However, the manifestation of these rights and duties will vary from civilization to civilization, since the degree of knowledge and understanding of these duties and rights will vary and the expression of these duties and rights will be exhibited according to each society’s history and culture and the sense of justice of different people. Nonetheless, the underlying principles are the same everywhere and at all times. It is the universality of human rights that gives them their strength.
These rights are unalienable and indivisible; that is, they cannot be taken away or even abridged. Therefore no ethical government can deny these basic rights to its citizens since the people don’t receive them from government. Basic rights precede the formation of government, and it is the duty of government to preserve, protect, and defend these rights equally for all its citizens. Moreover, government has the obligation to protect the rights of visitors, travellers, and resident aliens within its jurisdiction and to respect the human rights of the entire human family.
Human rights are indivisible and interdependent. Everything obviously depends upon the right to one’s life; however, the right to one’s life is inadequate if a person is enslaved or falsely imprisoned. And to be free is a cruel sham if one lives on the edge of starvation. Human rights need to be enjoyed in their entirety, as an indivisible and interdependent whole, in order that people may truly live the good life as human beings in a peaceful and just world.
These rights are also equal for everyone and do not leave any scope for any discrimination in terms of who they are granted upon.
Human rights also entail both rights and obligations. At the individual level, while we are entitled our human rights, we should also respect the human rights of others.
Human rights violations
Human rights violations occur when any state or non-state breaches any part of the UDHR treaty or other international human rights or humanitarian law. In regard to human rights violations of United Nations laws is the only tribunal that may determine UN human rights violations.
Human rights abuses are controlled by United Nations committees, national institutions and governments and by many independent NGO, such as Amnesty International, World Organisation Against Torture, International Freedom of Expression Exchange…These organisations collect documentation of doubtful human rights abuses and apply pressure to enforce human rights laws.
Only a very few countries don’t commit significant human rights violations like the Netherlands, Norway, Denmark, Iceland and Costa Rica. They are the only countries that did not (in their opinion) violate at least some human rights significantly.
Defining Social Contract
Social contract is a convention between men that aims to discard the state of nature. State of nature can be described as one where people live without laws and governance. As per the principle of justice, those people living under these can see through reason; it also includes right to life, liberty and pursuit of happiness. Most people seek to follow these principles but the problem is lack of explicit written laws that leads to uncertainty and difficulty to resolve disputes. And a solution to the problems under state of nature is social contract where people agree to obey the state, let the state make and enforce laws and people pay the state for its services. Social contract theory is based on the fundamental idea that will and not force is the foundation of a government, and it is the people who develop consensus to entrust the responsibility to the government to implement laws and governance to safeguard the interests of people.
The theory explains how societies and governments are formed, and in doing so emphasizes the government’s utmost duty to protect the rights of its citizens, especially due to the voluntary consent that people give to the formation of this government.
Kinds of Social Contract
Social contracts are of two types, explicit and implicit, of which in explicit contract actual expressed consent is required. In implicit social contract one agrees to the contract through actions rather than words. Citizens implicitly consent through residence, acceptance of benefits and through political participation.
Elements of the Social Contract
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(1) Motivated by self-interest, meaning that they will only agree to the contract if they perceive that they will benefit from social interaction;
(2) Concerned for the welfare of others, if only because they recognize that the advantages they expect to derive from the social contract will be conditional on their willingness to guarantee the same advantages to their counterparts; and
(3) Rational or reasonable with respect to the way they understand their own interests, the interests of others, and the just or moral principles that ought to govern their pursuit of those interests.
Parameters of the Social Contract Theory
From the idealism of John Locke on social contract, one notes some important parameters that are closely associated with the government and its people. John Locke argued that, all men are created equal with natural rights and the purpose of the government is to protect these natural rights. John Locke contended more that the source of government authority is the consent of the governed (i.e. the people), and the right of revolution is reserved for the governed.
Thus, from a state of nature men have passed to a state of society, by means of a contract in which they undertake to respect each other and live in peace. Also, people thus united undertake to obey a government they have chosen. These parameters of social contract theory of John Locke denote that the government is the outcome of the people’s consent and, thus, legitimacy of the government should remain in the will of the people.
Social Contract in the Modern World
Political power derived from social contract entails such power coming from the people and not from above, whether from divine law or the grace of God. Thus, social contract theory of John Locke is a forerunner of democratic theory.
John Locke’s doctrines of liberty and equality have exercised a strong influence upon the bill of rights in modern constitutions in many countries including Tanzania. Liberty and equality of an individual are highly respected and thus protected by the governments. And sovereignty resides in the people as per John Locke’s ideas.
Philosophies on social contract theory
Ideas throughout history relating social contract theory to human rights
In the early Platonic dialogue, Socrates made a compelling argument as to why he must stay in prison and accept the death penalty, rather than escape and go into exile in another Greek city. Socrates’ life and the way in which that life flourished in Athens were each dependent upon the Laws. Importantly, however, this relationship between citizens and the Laws of the city was not coerced. Citizens, once they had grown up and had seen how the city conducts itself, could choose whether to leave, taking their property with them, or stay; thus he believed that he must be accepting of the death penalty given to him. The contract described by Socrates is an implicit one: it is implied by his choice to stay in Athens, even though he is free to leave.
Plato represented a social contract explanation for the nature of justice. What men would most want is to be able to commit injustices against others without the fear of reprisal, and what they most want to avoid is being treated unjustly by others without being able to do injustice in return. Justice then, he said, is the conventional result of the laws and covenants that men make in order to avoid these extremes; men decide that it is in their interests to submit themselves to the convention of justice.
According to John Locke, the State of Nature, the natural condition of mankind, is a state of perfect and complete liberty to conduct one’s life as one best sees fit, free from the interference of others. This does not mean, however, that it is a state of license: one is not free to do anything at all that one pleases, or even anything that one judges to be in one’s interest. The State of Nature, although a state wherein there is no civil authority or government to punish people for transgressions against laws, is not a state without morality. The State of Nature is pre-political, but it is not pre-moral. Persons are assumed to be equal to one another in such a state, and therefore equally capable of discovering and being bound by the Law of Nature. The Law of Nature, which is on Locke’s view the basis of all morality, and given to us by God, commands that we not harm others with regards to their “life, health, liberty, or possessions”. Because we all belong equally to God, and because we cannot take away that which is rightfully His, we are prohibited from harming one another. So, the State of Nature is a state of liberty where persons are free to pursue their own interests and plans, free from interference and, because of the Law of Nature and the restrictions that it imposes upon persons, it is relatively peaceful.
The State of Nature therefore, is not the same as the state of war; it can, however dissolve into a state of war. Since in the State of Nature there is no civil power to whom men can appeal, and since the Law of Nature allows them to defend their own lives, they may then kill those who would bring force against them. Since the State of Nature lacks civil authority, once war begins it is likely to continue. And this is one of the strongest reasons that men have to abandon the State of Nature by contracting together to form civil government.
In the XIX th century, Thomas Hobbes founded a social contract theory of legal positivism on what all men could agree upon: what they want or look for, e.g. happiness was subjected to contention, but if the most important fear of men is a violent death at the hands of another, a natural law was how a rational human could assure them to survive and prosper. In Hobbes’s opinion, the only way which could prevail or persuade them was to submit men to the commands of the sovereign. In this lay the foundations of the theory of a social contract between the governed and the governor.
The French philosopher Jean-Jacques Rousseau suggested the existence of a hypothetical social contract where a group of free individuals agree for the sake of the common good to form institutions to govern themselves.
Thoughts and criticism in relating theories to actuality
The aforementioned theories do translate in reality in terms of people’s acceptance of social theory. People come to the understanding that the pros of governance from an elected power far outweighs the cons, so let the social contract of conduct shape and safeguard their human rights.
It is often argued that social contract curbs human rights as they would have existed in the state of nature. The Social Contract begins with the most oft-quoted line from Rousseau: “Man was born free, and he is everywhere in chains”. Humans are essentially free, and were free in the State of Nature, but the ‘progress’ of civilization has substituted subservience to others for that freedom.
To explain this acceptance of man towards the curbing of his own rights, we look to Aristotle, the Greek philosopher, who is known to have said:
“Man is by nature a social animal; an individual who is unsocial naturally and not accidentally is either beneath our notice or more than human. Society is something that precedes the individual. Anyone who either cannot lead the common life or is so self-sufficient as not to need to, and therefore does not partake of society, is either a beast or a god. ”
Basically, to a man society is indispensable, as the course of man’s life from birth to death evolves within the societal structure. Therefore, being a social animal, it can be said that it is in a man’s biological nature to live as a part of society abiding by its rules and regulations, as man understands that it is in his greater interest to do so.
Additional criticisms of the social contract theory
Implied or tacit consent to a social contract by most citizens or subjects would be difficult to establish. How then can people generally be obligated to obey laws based on social contract theory? Our consent is an assumed consent since it is taken as granted or true that every reasonable person in a state of perfect equality and absolute impartiality, if asked, would give such consent. Therefore every member of a given society is automatically bound by the social contract, since every member’s consent is assumed and required. It is this universally assumed consent to the social contract that constitutes the general basis for political duty.
However, assumed consent is not actual consent; it is consent that is imputed to each person as a member of society. It is, therefore, not an ethical act. Only when people explicitly acknowledge and accept the duties imposed by the social contract, with knowledge and forethought, do they perform an ethical act. And it is such explicit consent to the duties of the social contract that internalizes a person’s obligation to obey the law.
Reconciling social contract theory and human rights
Social contract theory shaping human rights
Social contract is the compilation of all our basic or natural duties. The social contract is that fundamental compact that consists of the rules imposing basic duties, assigning rights, and distributing the benefits of political, social, and economic cooperation, unanimously agreed to by reasonable people in a state of perfect equality and absolute impartiality. This contract is not the result of a historical event; it is the result of rational and legal analysis and hypothesis. The reasonable person test asks: would reasonable people agree to this or that duty? Would their agreement be unanimous-cross-cultural, cross-generational? The answers are usually given by lawyers, judges, politicians, philosophers, professors, and sometimes by popular vote. While the assembly of reasonable people is hypothetical, the social contract that results from this rational analysis is real. It is the fundamental compact that is assumed to exist in every society.
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.
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 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. Human rights are the benefits negotiated by our theoretical reasonable persons and received by 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.
Recall that when parties enter into a contract each becomes obligated to the other and each reciprocally acquires a right to what is promised by the other. So when we say that you have a right to life, we mean that there is a corresponding duty imposed upon all other persons in our society, and upon the society itself, not to kill you. Therefore each person within that society is entitled to the enforcement of these rights by the government against offending members of that society and against an abusive government itself, not only on behalf of the society as a whole but on behalf of each victimized individual member.
Human or natural rights are only those that arise from the acceptance of natural duties–no more and no less. So to discover a new human right we must first discover a new natural duty, necessary to a peaceful and just society, general in its application, and accepted by consensus. There can be no human right without the acceptance of a corresponding natural duty.
Governments therefore become just when they enforce the basic natural duties and protect the human rights flowing therefrom that constitute the social contract. And individuals become ethical when they freely acknowledge and affirm obedience to these basic duties as a personal obligation and give their informed consent to respect and honor the human rights of all other human beings.
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Grant, Robert. “The Social Contract and Human Rights.” Utah Humanist June 2009. Web. 17 June 2013 < http://www.humanistsofutah.org/2000/discjun00.html>.
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