1 The modern constitutional order
It has been suggested that, from an historical perspective, modern human rights as legal rights developed during the Enlightenment from domestic constitutional law.7 This epoch marks the beginning of the era of Constitutionalism. Modern constitutions are at the top of the hierarchy of the legal system within a national state. Their structure displays a formal as well as a practical aspect. The formal aspect is dedicated to those political bodies, procedures, and structural principles, on which the state is constructed.
The practical aspect lays down the values and objectives professed by the state, fundamental freedoms or human rights in particular.8
In modern constitutionalism the rights of man serve as the foundation of the New Political Order. Although the United Kingdom did not undergo a political transformation involving classical constitutionalism, some important legal acts do indicate the existence of quasi constitutional rights that both limit the powers of the sovereign and recognize individual liberties. The following documents are especially noteworthy: the Magna Charta (1215); the Habeas Corpus Act (1679); and the Bill of Rights (1689), born out of the English Glorious Revolution. However, it was only at the very end of the 18th century that two revolutions gave birth to the two most influential legal documents of constitutionalism, documents that may be considered the first catalogues of human rights in positivist legal form.9 Each of these revolutions was inspired by a liberal vision of society and built upon doctrines of rationalistic natural law. Their revolutionary force lay in the belief that the rights of man must be at the
6 Micheline R Ishay, "The Human Rights Reader", 2007 (2nd edition) at xxiii.
7 Nowak, above note 1, p. 36 See also Matthias Hartwig, "Der Gleichheitssatz und die Universalisierung der Menschenrechte", in Gleichheit und Nichtsdiskriminierung im nationalen und internationalen Menschenrechtsschutz R Wolfrum (ed.), 2003, p. 274.
8 Nowak, above note 1, p. 15.
9 Alfred Verdroß, "Die Würde des Menschen und ihr völkerrechtliche Schutz", 1975, p. 7.
foundation of the New Political Order. The first of these revolutions took place in the Anglo-Saxon world: the independence of the Thirteen Colonies from the British Empire. This revolutionary movement resulted in the US Declaration of Independence and the creation of the American constitution. In the European context, the French Revolution gave birth to the Déclaration de Droits de L'Homme et du Citoyen. These constitutional models inspired many nations in the western world to establish their own New Political Order founded upon a constitution. The common credo was that reason is an inborn moral sense that enables men to create a socio-politico-legal order in which liberty, equality and justice are possible.10
2 United States
The Virginia Bill of Rights of 12 June 1776 is a declaration of rights that served as a basis for the establishment of the foundations of government. Article 1 states that "all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."
Article 2 goes on to state likewise that "all power is vested in, and consequently derived from, the people(…)" Moreover, Article 3 establishes the objectives to which a society should aspire, while at the same time giving to the majority of the community the right to remove an inadequate government that fails in its duty to produce the greatest happiness and safety. Article 15 states also that "no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles."11
One month and two days after the Declaration of Independence of 4 July 1776, the reasons for separating from British colonial power were formally communicated. The Declaration drew legitimacy from the Laws of Nature and Nature's God. It states that
"We hold these truths12 to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life,
10 Yehoshua Arieli, "The Emergence of the Doctrine of the Dignity of Man" in The Concept of Dignity in Human Rights Discourse D Kretzmer and E Klein (eds.), 2002, p. 6.
11See Virginia Bill of Rights.
12 Richard B Lillich, Hurst Hannum, S James Anaya, Dinah Shelton, “International Human Rights”, 2006 (4th edition), p. 2 Telling that the word "truths" makes reference to the concept of human rights.
Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness." The Constitution of the United States was completed on 17 September 1787. It established the political bodies, structures, and different powers of the nation.13 A further important step in the constitutional history of the United States was taken in 1791 with the creation of the Bill of Rights. This document includes the first ten amendments to the American constitution. These recognize individual rights such as freedom of religion, speech, press, and assembly14, and the prohibition of cruel and unusual punishment.15 Yet another decisive moment in American history, in the history of the American constitution, and of the history of human rights in general, is the abolition of slavery on 12 June 1865.16
3 France
In Europe, the French Revolution gave light to the Declaration of the Rights of Man and of the Citizen. It established that: "The representatives of the French people, organized as a National Assembly, believing that the ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have determined to set forth in a solemn declaration the natural, unalienable, and sacred rights of man, in order that this declaration, being constantly before all the members of the Social body, shall remind them continually of their rights and duties; (…)" The following articles of the declaration illustrate how the new "Rights of Man" combine a doctrine of natural law with positive legislation in order to establish a new political order: Article 1, "Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good."; Article 2, "The aim of all political association is the preservation of the natural and imprescriptible rights of man. These
13 Stephen Andrew James, “The Origins of Universal Human Rights: An Evaluation”, 2005, p. 17 It is generally acknowledged that the philosophy backing the American Constitution used by Thomas Jefferson and George Manson were taken from the natural law teachings of John Locke, especially those of his Second Treatise on Government.
14 First Amendment, American Bill of Rights.
15 Ibid., Eight Amendment
16 Ibid., Thirteen Amendment.
rights are liberty, property, security, and resistance to oppression."; Article 3, "The principle of all sovereignty resides essentially in the nation. (…)"; Article 4, "Liberty consists in the freedom to do everything which injures no one else." Furthermore, specific rights were also clearly promulgated, i.e. Article 11, "The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law."; Article 17, "Since property is an inviolable and sacred right, (…)"
a American and French fundamental contribution
The main political achievement of the American and French charters was the realization that government exists to ensure the rights of the individual. We can see from the above examples that, in terms of the political organization of society, the main achievement of the American Constitution and the Déclaration de droits de L'Homme et du Citoyen in France was the legal codification of the principle that government exists to guarantee to the individual his or her inalienable rights.17 From a much broader, including economic, perspective, one sees that the new constitutional world was also grounded in the individual right to property, and to economic liberalism. In spite of such tremendous historical change, we should note, in passing, that these declarations of an inalienable, natural right to liberty, equality, fraternity, property, coexisted with a wide range of inequalities, that included slavery, racism, and the exclusion of women from some basic political rights.18 Nevertheless, the effect of these political and social advances was felt not only in the rest of Europe19 but also in Latin America20, many of whose countries began to demand independence, principally from Spain and Portugal. The Echo of the
"New Man" and "its New Political Order" was heard both in the "new" and in the "old"
parts of the human world. The rise of constitutionalism had another important effect in legal philosophy: it shattered the illusion that natural law can be the source of all individual claims. Indeed, natural law systems were criticized for being too open-ended;
17 Pagels, above note 2.
18 James, above note 13, p. 16.
19 Belgium: Constitution du 7 février 1831[consitution]; Germany: Pauschalkirschenverfassung 1848[consitution].
20 Venezuela: Constitución Federal de los Estados de Venzuela 1811[constitution]; Mexico: Constitución de Apatzingán 1814 [constitution]; Argentina: Constitución de las Provincias Unidas en Sudamérica 1819 [consitution]; Chile: Constitución de 1822 [constitution].
they were a sort of nonsense. 21 In effect, this doctrine had indeed been used to defend both "good" as well as "bad" rights.22 The new legal philosophy, that of positive law, aspired to a clearer and less compromised understanding and definition of basic human rights. Constitutionalism, while based on natural law and propagating its postulates, thus gave birth also to positivism and to the axioms of the rule of law.
4 Socialist Constitutionalism
The New Political Order established by the American and French revolutions occurred against the backdrop of an industrial revolution that itself gave rise to a form of capitalism intellectually underpinned by economic and political liberal ideas. The new political order focussed on fundamental civil and political rights, new forms of government, and the separation of powers into distinct Legislative, Executive and Judicial branches. From constitutionalism grew also a new liberal economic thinking in which the individual came to be understood as the principal agent in all economic activity. This individual boasted a right to property that served as the economic basis for an emerging political economy that, in the 19th century, rose gradually to a position of dominance. A further reaction to 19th century capitalism was socialist economic and political thought with its powerful international labour movement. Socialism reached a
"constitutional status" with the establishment of the Union of Soviet Socialist Republics (USSR). Another milestone in the history of constitutionalism is therefore the 1917 Declaration of the Rights of the Working and Exploited People.23 The second article of this declaration establishes that the fundamental aim of the Republic of Soviets of Workers', Soldiers' and Peasants' Deputies is "to abolish all exploitation of man by man, to completely eliminate the division of society into classes (...)".24 This Marxist-Leninist vision of the world influenced both national liberation movements and the modern
21 Jeremy Bentham, “Nonsense upon stilts, or Pandora’s Box opened, or the French Declaration of Rights prefixed to the Constitution of 1791 laid open and exposed – with a comparative sketch of what has been done on the same subject in the Constitution of 1795, and a sample of Citizen Sieyès” in The collected works of Jeremy Bentham: Rights, Representation, and Reform; Nonsense upon stilts and other writings on the French Revolution P Schofield, C Pease-Watkin and C Blamires, 2002 p. 330 In his critic to the first sentence of Art.2 of the French Declaration ("The end in view of every political association is the preservation of the natural and imprescriptible rights of man") Bentham expressed that “That which has not existence cannot be destroy’d: that which cannot be destroy’d cannot required anything to preserve it from being destroy’d. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense—nonsense upon stilts".
22 Hersch Lauerpacht, “International Law and Human Rights”, 1950, pp. 103-111 e.g. the opposition to female suffrage.
23 Declaration of the Rights of the Working and Exploited People.
24 Art 2, Declaration of the Rights of the Working and Exploited People.
constitutions of young states in Asia and Africa recently liberated from colonial rule.
Distinct from the emphasis placed upon civil and political rights in America and France (in what might be described almost as a laissez faire ideology), the Soviets saw the function of the state as providing individuals with other kind of rights. They considered it necessary to modify the liberal programme so as to include in it a greater emphasis on economic equity, labour standards, and the right to education.25 For the Soviet, responsibility for generating economic goods, compensation for labour, restriction of the workday, and paid holiday, was held not by the individual but by the state. This socialist ideology gave birth to a second generation of rights: economic, social, and cultural rights. Another familiar feature of socialism is the emphasis placed upon collectivism. This socialist emphasis, taken together with an antagonism between rich and poor, later influenced the proclamations of collective rights developed by poor countries that wished to avoid some of the social imbalances sometimes associated with an individual rights system. Most states have now opted for constitutions of the western type: the socialist vision of society has largely been dismissed. However, the contribution of socialist thought to human rights history and philosophy has been extensive and hugely important. Indeed, socialist thought plays a critical role in ongoing tensions between north and south, in the debate between notions of commutative and distributive justice, and in antagonist disputes between rich and poor. Indeed, concrete forms of constitutional individual rights are currently taking shape in the international field: one speaks now about the constitutionalization of international law.26