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EVOLUTION OF HUMAN RIGHTS: FROM NATURAL

RIGHTS TO POSTMODERNISM

By Tipu Salman Makhdoom

Table of Contents:

I- Introduction …………………………………………………………..

II- Human Rights are Special Rights…………………………….………..

III- Origins and Evolution of Human Rights.……………………..….……

IV- Second World War and Human Rights………………………………..

V- Postmodern View of Human Rights……………………………..…….

VI- Conclusion …………………………………………………….………

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I- INTRODUCTION:

“[W]ar crimes are being committed in special women’s concentration camps

where little girls, girls and women are being raped in the presence of their parents,

brothers and sisters, husbands or children. After that, according to witnesses’

statements, the raped persons are further brutalized and even massacred, their

breasts are sliced off and their wombs are ripped out….The young girls couldn’t

physically survive the rapes and quickly died…..[O]ver 300 young girls in The

Home for Retarded Children were raped.”1 Such incidents were not as rare as the

conquest of Troy through Trojans’ horse. These brutalities and inhumanities had

become part of everyday life of sizeable portion of human civilization; civilization

that is nearest to us in historical time and was at the zenith of its intellectual

triumph in the turbulent times of the catastrophe that engulfed the entire world for

more than half the decade and is now remembered as the Second World War. It

was in fact this height of inhumanity by the humans which became the catalyst for

the emergence of Human Rights. This is a brief discussion on the origin and

development of Human Rights in today’s world.

1 Stephen Shute and Susan Hurley (Ed), On Human Rights, The Oxford Amnesty Lectures, 1993

(Basic Books, A Division of HarperCollins Publishers, 1993) 2.

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The discussion will start with general introduction of rights in a politico-legal

system from where a historical string of different philosophical approaches to

inherent natural rights of men will be traced. Thereafter emergence of Human

Rights as a result of atrocities committed in the Second World War will be

analyzed ending on the postmodern panoramic view of the reality and Human

Rights.

II- HUMAN RIGHTS ARE SPECIAL RIGHTS:

A loosely defined set of values and a general perception of goodness in a society,

which the society is ready to force upon its members by showing its displeasure

but without the use of any organized force, is called its morality. Law, on the other

hand, is the set of political decisions of the society which are implemented by the

organized arm of the society i.e., government. In this state of affairs, a right is a

social privilege which a person is entitled to claim against other members of the

community. If the force behind this claim is the general social will of the

community, the privilege is known as moral right. However, if the force behind the

protection and enforcement of such a social privilege is the legal force of the

polity, the privilege is called legal right or simply the right.

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In all the developed legal systems, especially the ones based on written

constitutions, there are at least two hierarchies of rights; legal rights and

fundamental or constitutional rights. Legal rights are the privileges which cannot

be taken away from the citizens unless a majority of the representatives of the

whole of the society votes in favour of such a lapse. This is called the democratic

protection of the citizens’ legal rights and in this respect these are much secure

than an individual member’s moral right, the snatching of which is absolutely free

of any such procedural requirements. Constitutional rights, on the other hand, are

considered even more secure because written constitutions are normally rigid and

require more than simple majority of the polity before these can be amended. Thus

a right which has been given by a Constitution cannot be taken away by simple

majority vote and is more secure than a mere legal right. Likewise, a Human Right

is a right which has been bestowed upon every person of the world by the

international community of states and has been enshrined in the Universal

Declaration of Human Rights of 1948. In that sense a Human Right cannot be

snatched away from a person even by the unanimous decision of his society or

state. In this view of the matter, a Human Right is a very special kind of a right.

There are several popular definitions of Human Rights, but the one given by the

Nobel Laureate Amartya Sen is simple and specific. It defines Human Rights as

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those rights which every person anywhere in the world, irrespective of citizenship

or territorial legislation has, and which others are obliged to respect.2

III- ORIGINS AND EVOLUTION OF HUMAN RIGHTS:

Human civilization has a long tradition of recognizing that human beings get

certain rights by virtue of their species i.e., being humans. This idea has been

recognized by both religious as well as secular scholars. In terms of philosophy,

these rights are often called natural rights.3 Natural rights are a product of natural

law tradition, which is a phenomenon of classical era of philosophy. For the

Classical world view, universe was based on basic eternal principles, be they

religious doctrines of Judaism, Buddhism or Christianity, or the ultimate truths of

the Greek philosophers like Justice and Goodness. The idea was that just as the

working of the universe was based on the ultimate principles, so the natural

working of the social and individual human life is also based on the ultimate and

2 Amartya Sen, Elements of a Theory of Human Rights, Philosophy and Public Affairs [Fall 2004]

315-356, 315.

3 Jonathan Crowe, Explaining Natural Rights: Ontological Freedom and The Foundations of

Political Discourse, New York University Journal of Law & Liberty [2009] 70-111, 71.

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eternal principles. In order to lead a just and happy individual as well as social life

man had only to discover and follow these eternal Grund norms.

Natural law world view maintained that human beings have a certain definitive

character or nature which obligates that certain privileges should always remain

available to every human being, above and beyond circumstantial realities.4 Unless

recognized by a certain politico-legal system as rights, the status of these rights, for

a given politico-legal system, remains that of a moral right. This moral character of

natural rights takes them above the recognition mechanisms of a particular

politico-legal system and makes them available to every member of the human

species, irrespective of sex or ethnicity. In this sense, natural rights rightly claim to

be predecessors of modern day concept of Human Rights.5

The history and development of natural rights can be traced all the way back to the

start of recorded history; and interestingly, their assertion and development, in one

form of another, have always been enshrined in the human thought. Thus Code of

Hammurabi (Babylon-Iraq, 1795-1750 BC), in its preamble defined the

4 Susan Muaddi Darraj, The Universal Declaration of Human Rights (Chelsea House Publishers,

An imprint of Infobase Publishing, 2010) 24.

5 Robert P. George, Natural Law, Vol. 31 Harvard Journal of Law & Public Policy, No. 1 [2008]

171-196, 174.

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fundamental function of government as: “to bring about the rule of righteousness

in the land, to destroy the wicked and the evil-doers, so that the strong should not

harm the weak……and enlighten the land, to further the well being of mankind.”

Then came the Egyptian civilization of Pharaohs which defined the main purpose

of its law as to “make sure that all is done according to the law, that custom is

observed and the right of each man respected.” Persian civilization under Cyrus the

Great recognized liberty and security, freedom of movement and religious belief

and property rights for all. Judaism provides, in Old Testament, Isaiah 58:6-7:

“undo the tongs of the yoke, let the oppressed go free…..share your bread with the

hungry, and bring the homeless poor into your home.” Vedas of Aryan Civilization

of India provide “non-injury is not causing pain to any living being at any time

through the action of one’s mind, speech or body”. Buddhism, from the land of

great Indus Valley Civilization provides dignity of all forms of life and duty of all

of compassion and charity to others irrespective of sex or ethnicity. Confucianism

from the lands of China proclaims that “within the four seas all men are brothers”

and further “do not impose on other what you yourself do not desire.” Greek

philosophy developed the idea of natural law which included the concepts of equal

respect for all citizens and equality of all before law. The Great Chinese General

Sun Tzu in his world renowned treatise of war The Art of War (4th Century BC)

directs that an obligation exists to care for the wounded and prisoners of war. The

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edicts of Asoka the Great (India, 300 BC) guaranteed freedom of religion and other

fundamental rights for all. The great Indian laws of Manu prohibit killing of

anyone who is sleeping; who is unarmed; the one who is naked; anyone who is

deprived of his weapons; one who is only looking on and not fighting, and also not

to kill anyone who is engaged in fighting with another person. Prisoners of war, the

sick and the wounded were also to be well treated. Great Roman senator Cicero

maintained that each person had inherent dignity which obliges others to respect it.

Christianity in New Testament ordained that “there is neither Greek nor Jew, nor

slave nor free, nor man nor woman, but we are all one in Christ” and also to “do

unto others as you would have them do unto you.” Islam is also a prominent

proponent of natural rights wherein the sacred book Quran proclaims sanctity of

human life, freedom, mercy, compassion and respect for all the human beings

without regard to race or sex. The Common law milestones of Magna Carta (1215),

Petition of Rights (1628) and Habeas Corpus Act (1679) assures that “no freeman

shall be arrested, or detained in prison or deprived of his freehold…..except by the

lawful judgment of his pears or by the law of the land. Hungarian King Andras

(1222 AD) recognized the rights of the citizens to disobey royal acts not

conforming to the rule of law. British Philosopher John Locke in his Second

Treatise of Government (1690 AD) declared that every human being, even in the

state of nature and before existence of any organized political government,

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possessed certain natural rights which are intrinsic to him being the member of

human species. In French Revolution, Declaration of the Rights of Man and

Citizen (1789) proclaimed that “all are born and remain free and equal in rights.” A

popular leader of American War of Independence, Thomas Paine, in his all time

best-seller The Rights of Man (1791) introduced the expression “human rights” in

the concrete form for the first time in history. The famous French philosopher Jean

Jacque Rousseau declared that man is born free with intrinsic worth.6

The most popular natural law advocate of modern era was British Philosopher John

Locke (1632-1704). He popularized the view of social contract in political

philosophy and maintained that people form societies, and in turn political

governments so that their government could protect their natural rights as a

community. According to Locke, citizens had every right to disobey and challenge

their government if it fails to protect these natural rights.7 Modern day natural law

theorists expanded natural rights to overflow from the reign of morality to legality.

6 Dinah Shelton, An Introduction to the History of International Human Rights Law, The George

Washington University Law School Public Law and Legal Theory Working Paper No. 346, Legal

Studies Research Paper No. 346, Working Paper (August 2007) 1-30, 1-7

7Bureau of International Information Programs, U.S. Department of State, Human Rights in Brief

[2014] 3-4. Available at: http://photos.state.gov/libraries/amgov/30145/publications-

english/humanrights_brief.pdf, last accessed on 29.01.2015.

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They developed the argument that since natural rights are inherent in all the human

beings by virtue of their being humans, social and political justice demands that

their such rights be respected and protected not only by other individuals but also

by governments; natural rights, thus, became one of the basic ingredients of

ultimate and timeless principle of ideal justice.8

With the start of second half of the last millennium, human intellect progressed

from classical to modern era. The modern age of human civilization was triggered

by the scientific discoveries through which man realized that universe was in fact

governed by logic, and thus same should be true for social and individual human

life. Therefore, according to modern world view, social and individual life of men

should be conducted in accordance with logic and reason. In law, this triggered the

concept of positive law which meant that in tackling its realities, whatever a polity

would decide, will become law. Thus modernism’s idea of finding solutions to

social problems through application of universal reason replaced the classical ideal

of doing the same through discovering and following pre-determined rigid and

8 Robert P. George, Natural Law, Vol. 31 Harvard Journal of Law & Public Policy, No. 1 [2008]

171-196, 172-173

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stagnant principles.9 Though this certainly did not mean the death blow to the

concept of natural rights, it definitely did throw it out of the main stream; and

along with it the prospect of any principle being higher than the State and

consequently any possibility of challenging the State’s order, no matter how cruel

or wrong, on any ground whatsoever.

IV- SECOND WORLD WAR AND HUMAN RIGHTS:

More than 100 million people died in two World Wars of the last century; three

quarters of which were slaughtered in Second World War. The Six Years’ Great

War, popularly known as 2nd World War (1939-1945 AD) was unique not only

because of the number of states and continents that were involved in the fighting,

but was also matchless in the brutality that was thrust upon by rational men over

their rational brethren. The horrible face of the modern concept of rational positive

law was exposed in what is remembered as Holocaust committed by Nazi

Germany in the Second World War. More than 10 million innocent and unarmed

civilians, mostly Jews and Gypsies, were killed brutally and mercilessly by the

9 Alan M. Levine American University & Darren M. Staloff, City College of New York and City

University of New York, Enlightenment Critics of Natural Law, 1. Available at:

http://www.nlnrac.org/critics/enlightenment-critics. Accessed on 29.01.2015.

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German army, in the name of ethnic cleansing.10 This shook the conscience of

human race, at last.

Transcending from the Greek notion of justice being to give everyone his share to

St. Thomas Aquinas’ concept of right being inherent in every human being and

reducing law to a mere instrument to protect these inherent rights, man reached to

Rene Descartes’ modernity—cogito ergo sum—reality is rational and rational is

reality. From unity in faith modern man moved on to unity in universal common

human reason. The modernity that had thrust the natural rights behind the scenes

became the sole reason, thanks to the brutality committed to human race by it’s

‘the Sovereign State’ based on unrestrained positivist rational law, for their

powerful comeback as Human Rights.11

Experience taught us that when people have defensible rights—when their agency

as individuals is protected and enhanced—they are less likely to abuse and

oppression. Human Rights was a response to the craziest brutalities that can

10 Susan Muaddi Darraj, The Universal Declaration of Human Rights (Chelsea House Publishers,

An imprint of Infobase Publishing, 2010) 16-18.

11 Romuald R. Haule, Some Reflections on the Foundation of Human Rights—Are Human Rights

an Alternative to Moral Values?, Max Planck Yearbook of United Nations Law, Volume 10

[2006] 367-395, 370 to 379.

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happen when the Westphalian state was accorded unrestrained sovereignty

resulting in lack of criteria for its citizens in international law to disobey their

state’s legal but immoral orders. Thus Universal Declaration of Human Rights is a

major fire-wall created against any future acts of state barbarism against humanity.

The scenario of pre-Second World War, where citizens were literally helpless on

the face of barbaric orders of their state was changed topsy-turvy and international

law, in the shape of Universal Declaration of Human Rights of 1948, granted

individuals the rights that they could now exercise to challenge and resist the

unjust and oppressive laws or orders of their state. The atrocious acts of Nazi and

Fascist states during the Second World War forced mankind to demand legitimacy

under the umbrella of which individuals can refuse to obey the legal but inhuman

state laws and orders. International community provided this source to the citizens

of the world, in the shape of Universal Declaration of Human Rights of 1948.12

12Michael Ignatieff, I. Human Rights as Politics, II. Human Rights as Idolatory, The Tanner

Lectures on Human Values, delivered at Princeton University [April 4-7, 2000] 285-349, 288-

297. Available at: http://tannerlectures.utah.edu/_documents/a-to-z/i/Ignatieff_01.pdf.

Accessed on 29.01.2015.

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V- POSTMODERN VIEW OF HUMAN RIGHTS:

The European culture is historically a product of biblical idea of human nature;

humans are created in the image of God, but are not gods, humans can reason but

not beyond a point, from where only divine revelation can take them on the right

path, the path leading to the Kingdom of Heaven. Despite these short comings,

because humans are an imperfect image of God, they do possess certain intrinsic

dignity which comes with certain inherent rights as a package deal. And that

classical-biblical view was the foundation of the theory of natural rights of the

mankind. Modernists parted company with this medieval outlook on life. For the

modernist, man was a purely rational animal which did need truth, but this truth,

according to him, could be crafted independent of divine revelation, solely through

reason. In the modern view, self was autonomous. By autonomous was meant that

individual self was the ultimate existence of the self and the community of

individuals i.e., society, was an ultimate self surviving unit which was all powerful

over it members. The idea was that reason being a universal and common faculty

of human race, all rational people will come to same rational conclusions and thus

if human race can effectively use its faculty of reason, it can live in peace and

harmony. This idealist view was completely shattered in the brutalities of the

Second World War which lead to the revival of idealism of Classical period and

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the re-emergence of inherent, eternal and universal natural rights in the shape of

Human Rights.

However, in the decades following the end of the Second World War emerged

what is now known as the “Postmodern” world view. According to postmodern

view, not only is there no ultimate truth to be discovered, there is absolutely no

concept of universal reason even. In fact there is no objective reality. And since

there is no objective criterion to be used as a bench mark, there exists no universal

reality; all reality is relative. In other words, every human concept is a social

construct and every human thought has contextual meaning. 13 Thus although

origins of Human Rights was in the natural law concept of universal rights inherent

identically in every human being, their actual effective globalization is the result of

their getting local.14 Getting embedded in each social context according to its needs

and sensitivities is the actual triumph of Human Rights today.

13 Jim Leffel, Engineering Life: Human Rights in a Postmodern Age, CRI Statement DE-311, 1-8,

2. Available at: http://www.equip.org/PDF/DE311.pdf. Accessed on 29.01.2015.

14 Michael Ignatieff, I. Human Rights as Politics, II. Human Rights as Idolatory, The Tanner

Lectures on Human Values, delivered at Princeton University [April 4-7, 2000] 285-349, 290.

Available at: http://tannerlectures.utah.edu/_documents/a-to-z/i/Ignatieff_01.pdf. Accessed

on 29.01.2015.

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VI- CONCLUSION:

In the Classical period of human intellect, main thrust of the man was to

understand the world and himself within the four corners of divine revelation.

Based on the notions that God created universe and also created man in His image,

the idealist view of the time was that life is governed by divinely ordained

universal principles and the only requirement to lead good life was to discover

these ultimate principles and follow them. This gave rise to the idea that in addition

to the social, moral and legal rights, individuals also have some God given rights

which are inherent in every human being and since these are divine, they are sacred

and can only be taken away by God Himself; these would be called the natural

rights of men. With the turn of the 15th century AD came the triumphant

discoveries of science and technology and man realized that life is being governed

by reason and reason alone. This realization replaced divine sacredness with sacred

reason. Now the life-blood of universe was reason and everything had to conform

to hard-core reason. This concept faded away the God given natural rights of men

and replaced them with positive rights which were squarely dependent on the

sweet will of the state. The limits of this theory showed its ugly face during the

Second World War which cost mankind more than one hundred million lives. The

initial reaction of human race was to fall back on the idea of natural rights which

were re-named as Human Rights and the basis of which, instead of divine grant,

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was made the universal reason of the collective conscience of the world

community. However, with further progress of the human intellect, modern world

view is giving way to the postmodern world view. According to postmodernists,

there is neither any universal principle in the world nor any universal reason at the

base of it. According to postmodernists, there does not exist any universal reality.

In other words there is no possibility of any concept of universally acclaimed

Human Rights. The real success of Human Rights in today’s world is based on the

fact that individuals in today’s world need juridical resources to stand up when the

state ordered them to do wrong and this need has been fulfilled by the Universal

Declaration of Human Rights, 1948 which is being interpreted in every society

according to its cultural context to make it effectively implementable.

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BIBLIOGRAPHY:

1. Stephen Shute and Susan Hurley (Ed), On Human Rights, The Oxford

Amnesty Lectures, 1993 (Basic Books, A Division of HarperCollins

Publishers, 1993) .

2. Amartya Sen, Elements of a Theory of Human Rights, Philosophy and Public

Affairs [Fall 2004] .

3. Jonathan Crowe, Explaining Natural Rights: Ontological Freedom and The

Foundations of Political Discourse, New York University Journal of Law &

Liberty [2009] .

4. Robert P. George, Natural Law, Vol. 31 Harvard Journal of Law & Public

Policy, No. 1 [2008] .

5. Dinah Shelton, An Introduction to the History of International Human

Rights Law, The George Washington University Law School Public Law

and Legal Theory Working Paper No. 346, Legal Studies Research Paper

No. 346, Working Paper (August 2007) .

6. Bureau of International Information Programs, U.S. Department of State,

Human Rights in Brief [2014] . Available at:

http://photos.state.gov/libraries/amgov/30145/publications-

english/humanrights_brief.pdf, last accessed on 29.01.2015.

7. Alan M. Levine American University & Darren M. Staloff, City College of

New York and City University of New York, Enlightenment Critics of

19

Natural Law. Available at: http://www.nlnrac.org/critics/enlightenment-

critics. Accessed on 29.01.2015.

8. Susan Muaddi Darraj, The Universal Declaration of Human Rights (Chelsea

House Publishers, An imprint of Infobase Publishing, 2010) .

9. Romuald R. Haule, Some Reflections on the Foundation of Human Rights—

Are Human Rights an Alternative to Moral Values?, Max Planck Yearbook

of United Nations Law, Volume 10 [2006] .

10. Jim Leffel, Engineering Life: Human Rights in a Postmodern Age, CRI

Statement DE-311. Available at: http://www.equip.org/PDF/DE311.pdf.

Accessed on 29.01.2015.

11. Michael Ignatieff, I. Human Rights as Politics, II. Human Rights as

Idolatory, The Tanner Lectures on Human Values, delivered at Princeton

University [April 4-7, 2000] . Available at:

http://tannerlectures.utah.edu/_documents/a-to-z/i/Ignatieff_01.pdf.

Accessed on 29.01.2015.