HUMAN RIGHTS. - The declaration of human rights, which has exercised great influence on later orientations of social and juridical thought, particularly in Europe, is the one approved by the French National Assembly in 1789 and then incorporated into the Republican Constitution of 1791.
Historically it now seems established, after the study devoted to this subject by Jellinek, that the model on which the declaration was drafted was furnished by the Bills of rights of the recently constituted American republics. The English colonies of North America, having risen against the mother country and obtained independence, between 1776 and 1784 proceeded to formulate laws concerning human rights, which then found adequate sanction in the federal Constitution. Even more remote precedents of such declarations are found in English history, from which the American legislators must have drawn their inspiration. In the Magna Carta of 1225 Henry III granted to certain categories of the people some determined liberties, which were substantially repeated in the Petition of rights of 1628, in the Bill of rights of 1689 and in the Act of settlement of 1701.
The American example, known in France when the National Assembly convened, found minds already disposed to imitate it. The ground had already been deeply broken by Enlightenment philosophy. While the earlier declarations did nothing but recognize and sanction rights traditionally possessed by certain categories of the population, the American laws and the French declaration rise to a plane of greater universality, since the rights proclaimed as inviolable are recognized as the rights of man as such, the spontaneous sprout of his nature and the insurmountable limit of the power of the State.
The common foundation on which they rest is natural-law theory, which passed from England with the colonists to America and spread into neighboring France, producing the same effects on the two continents. This theoretical attitude placed man at the center of the system, raising his reason to the criterion of truth and attributing to his will an original autonomy, as the ultimate source of every law. To this new idol were attributed innate and inalienable rights, to which no foundation was assigned other than human nature, excluding every higher appeal to a transcendent source declared unknowable.
The proclamation of human rights sinks its roots into this soil and from it absorbs that aspect of exasperated individualism which sets individual and State against each other as two enemies, dissolves social life into voluntaristic atomism and exaggerates, beyond the limit compatible with ordered social life, liberty, giving rise to the physiocratic and liberal school, and equality, preparing the driving spring for anarchic socialism and communism. It is to this theoretical foundation, not to human rights in themselves, that the condemnations of Pius IX and Leo XIII are directed.
If one prescinds, in fact, from the conception to which they were anchored, their affirmation corresponds to a demand rendered alive and operative by Christianity. Skipping over several centuries of history, De Ruggiero has sought to maintain that the concepts of liberty and equality, which form the hinge of the declaration of human rights, reappeared on the surface in the Calvinist milieu of Geneva, under whose influence Rousseau wrote the works that furnished the ideological fabric to the French Revolution. Cassirer, on the other hand, supposes as demonstrated that this merit should be attributed to the Reformation. These are opinions without historical foundation, against which stands the fact that both Calvinism and the Reformation are responsible for the deepest devaluation of man, having denied him liberty at the root with the theory of a nature substantially 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 the consciousness of his own dignity, proclaiming man a son of God, made in His image and likeness, and consequently endowed with a high original nobility, by virtue of which he becomes the center of the visible universe, which gravitates around him to serve him and help him attain the transcendent goal to which his existence is directed. From this indestructible dignity and from the goal that he is called to realize, making use also of society, spring his innate rights, as a power of action, protective barriers of his personality and objective values that impose themselves on the respect of any 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 raises his conceptions to the true plane of universality.
Catholic speculation has availed itself of these revealed data as a guide in elaborating its rational conception of human rights. Since the Middle Ages it has discovered the golden vein of natural law, on which it has firmly based the subjective rights of the human person, proclaiming and defending them with unchanging vigor, even before contemporary thought had rediscovered them. Human rights are, therefore, a very ancient conquest, from which the declaration of the French Revolution drew. What it added anew was only the dissolving element of agnostic rationalism, which leaves human rights without a consistent foundation, since every right remains devoid of value if one does not admit as its ultimate instance a supreme ordering mind and a supreme creative will.
Human rights, having by now become the patrimony of modern social and juridical thought, are also called rights of liberty, inasmuch as they all gather around the most fundamental one, which is that of liberty, once suppressed which it is no longer possible to exercise any of them. Besides equality, already in the declaration of the French National Assembly they included the right of property, of security, of resistance to oppression, of freedom of thought, of opinion, of the press and of religion. The scheme, with the adaptations and extensions suggested by the social and political conditions of each country, has passed into almost all modern constitutions, with the exception of Russia, which totally subordinates the citizen to the class. Nevertheless, in the course of time the spirit has somewhat changed and the framework has slowly come to widen its borders. The individualistic vision of society has been succeeded by a greater consciousness of the organic character of the State, by virtue of which duties have also been associated with rights, and for some of them in particular, such as property, there has been a concern to emphasize not only the individual aspect but also the social aspect, as the Weimar Constitution did in its time (arts. 109-65) and more recently the Constitution of the Italian Republic (arts. 2-4, 6, 8, 13-27, 35-46, etc.). This one, indeed, to the traditional human rights has added the express mention of its social rights and has integrated the concept of formal equality before the law, to which most constitutions restrict themselves, with that of real and de facto equality, in order to obtain a greater economic parity among the classes.
The penetration of the rights of man into almost all the constitutions of the civilized world has not been accompanied by a doctrinal systematization that would safeguard them from the encroachments of the power of the State. From the 19th century onward a strong reaction developed, in part justified, 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 among the debris of old systems, attempted to ground 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 of action. Having placed this concept of sovereignty at the basis of the system, it logically had to deny the existence of any original subjective right in man, configuring those rights, which the constitutions nonetheless continued to recognize, as a reflection of positive law, the one and true law, to which it attributed the power to raise man to the status of legal person and his natural faculties to that of right.
In this way the rights of man were reduced to nothing, since a right whose existence depends on an absolutely autonomous will is not accompanied by any guarantee that that will will respect it as an insurmountable limit to its action; that is, it is no longer a right. Various expedients have been devised by legal doctrine to overcome this difficulty: all of them, however, have proved vain. Only a return to the never-superseded classical conception of natural law will be able once again to offer a solid basis for the rights of man.
The recognition of the rights of man has also extended to the international field. Although common doctrine still shows itself reluctant to admit that the individual can be considered in some respect as a subject of the international order, nevertheless neither the practice of States nor treaty law has disregarded him. In this connection mention should be made of the interventions of humanity, with which the European nations moved to the defense of populations oppressed by the Ottoman Empire, in Greece in 1827 and in Syria and Lebanon in 1860. Of greater importance for the international protection of human rights is the Treaty of Berlin of 1878, which drew up a veritable protective code for minorities, to which it assured the enjoyment of civil and political rights, freedom of worship, and the hierarchical organization of religious confessions. The League of Nations perfected the system for the protection of human rights, stipulating with Poland and with the other States that had extended their borders after the First World War treaties by which it imposed respect for the right to life and liberty, to the free profession of religion and to public worship, to civil and political equality, and to the use of the national language, thus 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 the rights of man, which was to become the permanent charter of nations. This movement was supported by the Catholic Union of International Studies, which in 1931 invited, by a motion of its own, scholars to work at the doctrinal elaboration of a declaration of the rights of man. The Charter of the United Nations, accepted in 1945 by 49 States, satisfied these postulates only in part, committing in its preamble the States belonging to the organization to respect for the rights of man and his fundamental freedoms, without distinction of race, sex or religion. A charter, which resembles in the international field the declaration of the rights of man of the French Revolution, was drafted by the United Nations Organization and approved by 48 nations against eight abstentions on 10 Dec. 1948.
The framework of the rights recognized in it is very broad. It opens with an article, modeled on the charter drafted at the time of the French Revolution, in which it is affirmed that all men are born free and equal in dignity and rights. Among the individual rights are proclaimed those to life, to liberty and to personal security, whose maintenance is reinforced by the prohibition of slavery in all its forms, of torture, of degrading punishments or treatment, as well as by the recognition of the legal personality of the person in all places. Equality, already affirmed in the preliminary article, retains the form of equality before the law and in the treatment of the State. Personal security is met by the proclamation of the right not to be arbitrarily arrested or exiled and by the positive norm of being judged by an impartial tribunal in public debate. In this connection the norm nulla poena sine lege is sanctioned, excluding the possibility of punishing actions not considered criminal at the time of their commission, and beyond the limits then sanctioned by law. To render liberty effective, every arbitrary interference in private life, in the family, in the home and in the secrecy of correspondence is excluded.
In the part concerning the family and society, the rights to contract marriage freely and to found a family have been included, within which man and woman are perfectly equal, and it is not omitted to affirm that the family, as a natural and fundamental element of society, has a right to social protection. Property is recognized as legitimate. In a series of articles the well-known rights of freedom of conscience, of thought and of religion, of opinion and of expression, of assembly and of association are once again recognized, with a breadth that classical liberalism itself did not attain. Equality in the enjoyment of civil and political rights also finds adequate consideration, although it is connected with the affirmation of the democratic principle of the will of the people as the foundation of authority and of public powers, whence then the juridical consecration of periodic consultations by means of free voting and of universal suffrage, equal and by secret ballot.
The series of social rights comprises: the rights to security, in order to satisfy the economic, social and cultural rights indispensable to the dignity and the perfection of the human person; to work, to its free choice and to adequate remuneration with an equal wage for equal work, which must in every case correspond to individual and family needs; to freedom to found trade unions and to belong to them; to a condition of life sufficient to assure the well-being of the worker and of the family, to protect him against unemployment, illness, accidents and old age. A special mention is given to the rights of maternity and childhood, for whose education the principle of the priority of the right of the parents is accepted.
The Charter of the United Nations, whose rights have been summarily listed, has its merits and its defects. It marks an undisputed progress in international society, which has thus begun to take an interest in the human person in a truly collective manner. To its credit is to be ascribed having placed the human person at the center of the declaration, partly overcoming individualism, and having overturned the positivist conception, which derived all subjective rights from the order of the State, by considering human rights as fundamental and intangible on the part of public power, with a perceptible shift back toward the thesis of natural law. In particular, the paragraphs on the family and on education should be noted, where sound principles have penetrated.
To the merits noted there are joined not a few defects. The Charter of the United Nations has not overcome the rationalistic conception of law, and has therefore left the rights of man without an ontological foundation. Conceived as faculties inherent in the human person and emerging from rational nature, not connected with its transcendent origin, whose mention has been positively excluded, they have scant guarantee of imposing themselves on the will of the State as a categorical norm. Moreover, the concepts of liberty and equality remain, as in the French declaration, on the abstract plane of nature, without descending to the concrete plane, where liberty is intrinsically limited and equality is mingled with natural and acquired inequalities. The right of property is enunciated in too absolute a form, without any mention of its social function. Greater reservations are deserved by the articles concerning modern liberties, particularly religious liberty, with respect to which, according to Catholic doctrine, the right to change religion is a nonsensical thing. Finally the charter indulges in the enunciation of debatable theoretical principles, such as that which holds that authority and public powers are founded on the authority of the people, of equal universal suffrage, which consecrates the parliamentary regime as a right.
The declaration of the United Nations has no binding force for the States that have signed it, which have only assumed a moral commitment. It would remain inoperative if it were not integrated by a collective convention that makes it become part of positive international law and furnishes it with organs invested 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 very great difficulties.
Bibliography14 works
Antonio Messineo