THE CONCEPT OF HUMAN RIGHTS
Traditionally, human rights have examined the relationship and tensions that exist between
the individual and the state. The state has coercive power over each individual in society.
Today the understanding of human rights is wider and includes the relationship between
individuals as well as equality.
Human rights can be defined as:
a)
A concept.
b)
Liberties associated with being a member of a free and democratic
political society.
c)
The fair distribution of what society has to offer. (e.g., food, shelter,
education, wealth, opportunity, etc)
Natural Rights are rights that are considered to be absolute or unrestrictable. They should
be subject to minimal or no limitation. E.g. Life.
Positive Rights are rights that are derived from the political authority and are subject to
changes in society. They are tied to the collective well being of society therefore they are
restrictable by law. E.g. Life
Natural rights are from universal norms which positive laws enforce and confirm while
positive law advocates that rights are only ideas without law.
The concepts of natural and positive rights are philosophical in nature. Any right can be
defined as either depending on the understanding as the nature of rights.
HISTORY OF HUMAN RIGHTS THEORY
Plato
Human dignity is a universal and eternal truth that stands
above the law of any state.
Aristotle
He was the first to speak of equality however equality for
those who are “similarly situated” (same class). Social classes
are natural as they can be observed and “rationalized”
throughout nature.
St. Thomas Aquinas
Basic human needs under natural law must be protected by
human rights. Government has the duty to ensure that the
first principle, which are universal and unchanging, is
prominent in our society.
Thomas Hobbes
Rights do not exist if there are no strong, cohesive human
laws to enforce them. The can easily be given and taken
away by the state. The government has a duty to protect life
and liberty only.
Jeremy Bentham
Law should favour the welfare of the greater good for society
over the rights of the individual.
John Locke
Positive law is embedded in a constitution based on natural
law. Legislative power is supreme subject to natural law and
the fundamental rights of life, liberty and property. Locke
believes that it is natural to accumulate wealth and therefore
the government should not be expected to redistribute
wealth but to protect property and its accumulation. If the
power of the state is used for selfish purposes of the
powerful then revolution is appropriate. This philosophy
lent itself to the American and French Revolutions and laid
the foundation for their republics.
Jean Jacques Rousseau
We all live in a social contract. A social contract means that
all within a state are deemed to have voluntarily entered into
a contract with civilized society. In return for protection and
equality to each individual, the citizen promises to adhere to
the laws of that society.
Immanuel Kant
Every person should act in a way that the exercise of his/her
individual freedom leaves equal freedom for others. Kant
believed in the transfer of the Golden Rule (do unto others
as you would have them do to you) to the application of
human rights. Rights should be celebration of human
dignity.
John Stuart Mill
Mill warns us to beware of the “tyranny of the majority”.
Society must ensure that in the promotion of the rights of
the majority that we do not threaten the development of the
individual. The protection of the minorities rights to
conscience, expression and association is as necessary as
protecting the majority’s. Rights are not absolute but
pursued in a way as not to deprive others of their rights or
ability to achieve them.
Karl Marx
Rights are illusions unconnected to reality, which is the
exploitation of the working class. The law is a tool to
perpetuate the domination of the capitalists. Contrary to all
others, liberty is not the freedom from government
interference but is gained only through government
intervention. Equality overrides liberty and individual liberty
is inconsistent with the fundamental goal of the working class
controlling the means of production. The only way that
equality will come to pass is through an inevitable revolution
and imposition by the government.
CLASSIFYING RIGHTS TERMINOLOGY
Civil Liberties/Freedoms
Civil liberties are actions or rights that should be exercised without interference from the
state.
According to Bora Laskin (Former Chief Justice of the Supreme Court of Canada) there
are 4 categories of liberties:
 Political Liberties are those that make democracy possible. They include the
freedoms of speech, press, association, assembly, religion and conscience.
 Legal Liberties are those that maintain our belief in the Rule of Law. They include
the freedoms from arbitrary detention, unlawful search and seizure, right to
counsel, right to trial in reasonable time, etc.
 Economic Liberties are the freedoms from intervention in economic affairs. They
promote our shared value of economic individualism. These liberties include
freedom of mobility, equality and choice.
 Equality Rights are present to ensure that there is an equality of opportunity, access
to social goods, education and application of law.
Civil liberties are negative rights, as they require protection.
Civil Rights
Civil Rights are matters that are within the jurisdiction of the provinces. They are to
maintain social order through private law. These rights are active as they allow us to do
something.