HUMAN RIGHTS. — The declaration of human rights, which exerted a great influence on subsequent orientations of social and legal thought, particularly in Europe, is the one approved by the French National Assembly in 1789 and subsequently incorporated into the Republican Constitution of 1791.
Historically, it now seems established, following the study devoted to this subject by Jellinek, that the model on which the declaration was drafted was provided by the Bills of rights of the recently established American republics. The English colonies of North America, having risen against the mother country and obtained independence, proceeded between 1776 and 1784 to formulate laws concerning human rights, which subsequently received appropriate sanction in the federal Constitution. Even more remote precedents of similar declarations are found in English history, from which the American legislators had to draw their inspiration. In the Magna Carta of 1225, Henry III granted certain categories of the people specific liberties, which were substantially repeated in the Petition of rights of 1628, the Bill of rights of 1689, and the Act of settlement of 1701.
The American example, known in France when the National Assembly convened, found minds already disposed to imitate II. The ground had already been deeply tilled by Enlightenment philosophy. Whereas the earlier declarations did nothing more than recognize and sanction rights traditionally possessed by certain categories of the population, the American laws and the French declaration rose to a plane of greater universality, since the rights proclaimed inviolable were recognized as human rights as such, the spontaneous outgrowth of human nature and an insurmountable limit upon the power of the State.
The common foundation on which they rest is natural law theory, which passed from England to America with the colonists and spread into neighboring France, producing the same effects on the two continents. This theoretical attitude placed man at the center of the system, elevating his reason into the criterion of truth and attributing to his will an original autonomy, as the ultimate source of every law. This new idol was credited with innate and inalienable rights, to which no foundation was assigned other than human nature, with every higher appeal to a transcendent source declared unknowable being excluded.
The proclamation of human rights has its roots in this soil and absorbs from it that aspect of extreme individualism which sets the individual and the State against each other as two enemies, dissolves social life into voluntaristic atomism, and exaggerates freedom beyond the limit compatible with orderly social life, giving rise to the physiocratic and liberal school, and equality, providing the driving force for anarchic socialism and communism. It is not human rights in themselves, but this theoretical foundation, that is the object of the condemnations of Pius IX and Leo XIII.
If, in fact, one sets aside the conception to which they were anchored, their affirmation corresponds to a need made vivid and operative by Christianity. Leaping over several centuries of history, De Ruggiero sought to maintain that the concepts of freedom and equality, which form the cornerstone of the declaration of human rights, reappeared on the surface in the Calvinist environment of Geneva, under whose influence Rousseau wrote the works that provided the ideological framework for the French Revolution. Cassirer, on the other hand, supposes it demonstrated
that this merit should be attributed to the Reformation. These opinions are without historical foundation, as is shown by the fact that both Calvinism and the Reformation are responsible for the deepest devaluation of man, having denied freedom at its very root through the theory that human nature was essentially corrupted by original sin.
The offshoots of the declaration of human rights go back to the first appearance of Christian thought, which gave the human person an awareness of his own dignity by proclaiming man a child of God, made in His image and likeness, and consequently endowed with a high original nobility, by which he becomes the center of the visible universe, which gravitates around him in order to serve him and help him attain the transcendent end toward which his existence is directed. From this indestructible dignity and from the end that he is called to achieve, also availing himself of society, arise his innate rights, as powers of action, protective barriers around his personality, and objective values that command the respect of every created being. Without the Christian message, man could not have broken the chains of servitude that bound him to the State, nor could he have recognized in every other rational being that eminent dignity which carries his conceptions onto the true plane of universality.
Catholic speculation has made use of these revealed data as a guide in elaborating its rational conception of human rights. Since the Middle Ages it has discovered the rich vein of natural law, upon which it has firmly based the subjective rights of the human person, proclaiming and defending them with unflagging vigor, even before contemporary thought had rediscovered them. Human rights are therefore a very ancient achievement, from which the declaration of the French Revolution drew. It added only the dissolving element of agnostic rationalism, which leaves human rights without a solid foundation, since every right remains devoid of value unless one admits, as its ultimate source, a supreme ordering mind and a supreme creative will.
Human rights, by now the heritage of modern social and legal thought, are also called rights of freedom, since they all gather around the most fundamental of them, namely freedom, without which it is no longer possible to exercise any of the others. In addition to equality, the declaration of the French National Assembly already included the right to property, security, resistance to oppression, and freedom of thought, opinion, the press, and religion. With the necessary adaptations and expansions suggested by the social and political conditions of each country, this model passed into almost all modern constitutions, with the exception of Russia, which totally subordinates the citizen to the class. Over time, however, the spirit changed somewhat, and the framework slowly began to broaden. The individualistic view of society was succeeded by a greater awareness of the organic character of the State, by virtue of which duties were also associated with rights; and with regard to some rights in particular, such as property, efforts were made to emphasize not only their individual aspect but also their social aspect, as was done in its time by the Weimar Constitution (arts. 109–65) and, more recently, by the Constitution of the Italian Republic (arts. 2–4, 6, 8, 13–27, 35–46, etc.). The latter,
indeed, added to the traditional human rights the express mention of social rights and supplemented the concept of formal equality before the law, to which most constitutions restrict themselves, with that of real and factual equality, in order to achieve greater economic parity among the classes.
The penetration of human rights into almost all the constitutions of the civilized world has not been accompanied by a doctrinal systematization that would place them beyond the encroachments of state power. From the nineteenth century onward, a strong, and in part justified, reaction arose against natural-law theory, accused of feeding on abstractions. The need for greater concreteness gave rise to a current of thought which, relegating natural law to the debris of old systems, attempted to establish the theory of subjective rights on other criteria. Legal positivism accepted as a postulate that the sole source of law is the sovereign will of the State, intrinsically unlimited in its power to act. Having placed this concept of sovereignty at the foundation of the system, it was logically compelled to deny the existence in man of any original subjective right, presenting those rights which the constitutions nevertheless continued to recognize as a reflection of positive law—the sole and true law—to which it attributed the power of raising man to the status of a legal person and his natural faculties to that of rights.
Human rights were thus reduced to nothing, since a right whose existence depends upon an absolutely autonomous will is accompanied by no guarantee that this will shall respect it as an insurmountable limit to its action; in other words, it is no longer a right. Various expedients were devised by legal doctrine to overcome this difficulty, but all proved futile. Only a return to the classical conception of natural law, which has never truly disappeared, can once again offer a solid foundation for human rights.
The recognition of human rights has also extended into the international sphere. Although common doctrine still shows reluctance to admit that the individual may in some respect be regarded as a subject of the international order, neither the practice of States nor treaty law has remained indifferent to him. In this connection, the humanitarian interventions by which the European nations undertook the defense of populations oppressed by the Ottoman Empire should be recalled: in Greece in 1827 and in Syria and Lebanon in 1860. Of greater importance for the international protection of human rights was the Treaty of Berlin of 1878, which drew up a genuine protective code for minorities, assuring them the enjoyment of civil and political rights, freedom of worship, and the hierarchical organization of religious denominations. The League of Nations perfected the system for the protection of human rights by concluding treaties with Poland and with the other States whose frontiers had been extended after the First World War. These treaties imposed respect for the right to life and liberty, for the free profession of religion and public worship, for civil and political equality, and for the use of the national language, thereby broadening the framework of human rights already outlined by the Congress of Berlin.
Almost contemporaneously, in 1919, the Institute of International Law of New York unanimously adopted a motion in which it made itself the promoter of an international declaration of human rights, which was intended to become the permanent charter of the nations. This movement received the support of the Catholic Union for International Studies, which in 1931, through one of its motions, invited scholars to work on the doctrinal elaboration of a declaration of human rights. The Charter of the United Nations, accepted in 1945 by 49 States, satisfied these postulates only in part, committing the States belonging to the organization, in its preamble, to respect human rights and fundamental freedoms, without distinction of race, sex, or religion. A charter resembling, in the international sphere, the declaration of the human rights of the French Revolution, was drafted by the United Nations Organization and approved by 48 nations, with eight abstentions, on 10 December 1948.
The range of rights recognized in it is very broad. It opens with an article modeled on the charter drawn up at the time of the French Revolution, which affirms that all men are born free and equal in dignity and rights. Among individual rights, it proclaims those to life, liberty, and personal security; their preservation is reinforced by the prohibition of slavery in all its forms, of torture, and of degrading punishment or treatment, as well as by recognition of every person’s legal personality in all places. Equality, already affirmed in the preliminary article, retains the form of equality before the law and in the treatment accorded by the State. Personal security is safeguarded by proclaiming the right not to be arbitrarily arrested or exiled and by the positive rule that one is to be judged by an impartial tribunal in a public hearing. In this connection, the rule nulla poena sine lege is affirmed, excluding punishment for acts that were not considered criminal when they were committed, or beyond the limits then prescribed by law. To make liberty effective, any arbitrary interference in private life, the family, the home, and the secrecy of correspondence is excluded.
In the section concerning the family and society, the rights to freely contract marriage and to found a family have been included; within it, man and woman are perfectly equal, and it is expressly affirmed that the family, as the natural and fundamental element of society, has the right to social protection. Property is recognized as legitimate. In a series of articles, the familiar rights to freedom of conscience, thought, and religion, of opinion and expression, of assembly and association are once again affirmed, with a breadth that even classical liberalism did not attain. Equality in the enjoyment of civil and political rights also receives due consideration, although it is connected with the affirmation of the democratic principle that the will of the people is the foundation of authority and public powers; hence the legal consecration of periodic consultations through free voting and of equal universal suffrage by secret ballot.
The series of social rights includes: rights to security, in order to satisfy the economic, social, and cultural rights indispensable to the dignity and perfection of the human person; to work, to its free choice, and to adequate remuneration, with equal pay for equal work, which must in every case correspond to individual and family needs; to the freedom to establish and join trade unions; and to a standard of living sufficient to ensure the well-being of the worker and the family, and to protect him against unemployment, illness, accidents, and old age. Special mention is made of the rights of motherhood and childhood, with regard to whose education the principle of the priority of the parents’ right is accepted.
The Charter of the United Nations, whose rights have been summarized, has its merits and its defects. It marks an unquestionable advance in international society, which has thus begun to take an interest in the human person in a truly collective manner. Its merit lies in having placed the human person at the center of the declaration, partly overcoming individualism, and in having overturned the positivist conception that derived all subjective rights from the State’s legal order, treating human rights as fundamental and inviolable by public power, with a marked return toward the thesis of natural law. In particular, the paragraphs on the family and education should be noted, as sound principles have found their way into them.
The merits noted are accompanied by no few defects. The Charter of the United Nations did not overcome the rationalistic conception of rights, and therefore left human rights without an ontological foundation. Conceived as faculties inherent in the human person and arising from rational nature, without connection to its transcendent origin,
the mention of which was positively excluded, they have little guarantee of being imposed upon the will of the State as a categorical norm. The concepts, moreover, of freedom and equality remain, as in the French declaration, on the abstract plane of nature, without descending to the concrete plane, where freedom is intrinsically limited and equality is mingled with natural and acquired inequalities. The right of property is enunciated in an excessively absolute form, without any reference to its social function. Greater reservations are warranted by the articles concerning modern liberties, particularly religious liberty, with regard to which, according to Catholic doctrine, the right to change religion is nonsensical. Finally, the charter indulges in the enunciation of disputable theoretical principles, such as the claim that authority and public powers are founded on the authority of the people and on equal universal suffrage, which consecrates the parliamentary system as a right.
The declaration of the United Nations has no binding force for the States that signed it, which assumed only a moral obligation. It would remain inoperative unless supplemented by a collective convention that made it part of positive international law and provided it with bodies entrusted with the power to supervise its observance. A draft convention has already been prepared by the United Nations Organization, but it is foreseeable that its acceptance will encounter extremely serious difficulties.
Antonio Messineo
#### DIRITTI DI STOLA: V. STOLA, DIRITTI DI.