HUMAN RIGHTS. - The declaration of human rights, which has exerted great influence on later orientations of social and juridical thought, particularly in Europe, is that approved by the French National Assembly in 1789 and then incorporated into the Republican Constitution of 1791.
Historically, it now seems certain, after 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 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 for such declarations are found in English history, from which the American legislators drew their inspiration. In the Magna Carta of 1225, Henry III granted certain freedoms to specific categories of the people, which were substantially repeated in the Petition of Right 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 II. The ground had already been deeply plowed by Enlightenment philosophy. Whereas previous declarations merely recognized and sanctioned rights traditionally held by certain categories of the population, the American laws and the French declaration rose to a higher plane of universality, since the rights proclaimed as inviolable were recognized as human rights as such, a spontaneous fruit of human nature and an inviolable limit of state power.
The common foundation on which they rest is juridical rationalism, which passed from England to America with the colonists and spread to nearby France, producing the same effects on both continents. This theoretical stance placed man at the center of the system, elevating 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 other innate and inalienable rights, to which no other foundation was assigned than human nature, excluding any higher appeal to a transcendent source declared unknowable.
The proclamation of human rights takes root in this soil and absorbs from it its aspect of exacerbated individualism, which opposes individual and state as two enemies, dissolves social life into voluntaristic atomism, and exaggerates beyond the limit compatible with orderly social life both liberty—giving rise to the physiocratic and liberal schools—and equality, providing the impetus for anarchic socialism and communism. It is not to human rights in themselves, but to this theoretical foundation, that the condemnations of Pius IX and Leo XIII are directed.
If one disregards, in fact, the conception to which they were anchored, their affirmation corresponds to an exigency made alive and operative by Christianity. Skipping several centuries of history, De Ruggiero has maintained that the concepts of liberty and equality, which form the hinge of the declaration of human rights, reappeared at 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, instead, supposes as demonstrated that this merit should be attributed to the Reformation. Opinions such as these are without historical foundation, against which stands the fact that both Calvinism and the Reformation are responsible for the most profound devaluation of man, having denied him fundamentally the freedom implied in the theory of a nature substantially corrupted by original sin.
The roots of the declaration of human rights go back to the first appearance of Christian thought, which gave to 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 which he becomes the center of the visible universe, which revolves around him to serve and help him attain the transcendent end for which his existence is directed. From this inalienable dignity and from the end he is called to attain, using society as well, there flow his innate rights as powers 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 would not have been able to cast off the chains of servitude that bound him to the state, nor would he have been able to recognize in every other rational being that eminently dignity which elevates his conceptions to the true plane of universality.
Catholic speculation has availed itself of these revealed data as a guide to elaborate its rational conception of human rights. From the Middle Ages it has discovered the golden vein of natural law, on which it has firmly supported 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 achievement, from which the declaration of the French Revolution drew. It added to them 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 highest creative will.
Human rights, now become part of the patrimony of modern social and juridical thought, are also rights of liberty, inasmuch as they all gather around the most fundamental one, which is liberty itself, the suppression of which makes it impossible to exercise any other. Along with equality, already included in the declaration of the French National Assembly, they comprised the right to property, to security, to resistance to oppression, to freedom of thought, opinion, the press, and religion. The scheme, with the necessary adaptations and expansions 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. Over time, however, the spirit has somewhat changed, and the framework has slowly expanded its scope. To the individualistic vision of society has succeeded a greater consciousness of the organic nature of the state, by virtue of which duties have been associated with rights, and for some of them in particular, such as property, emphasis has been placed not only on the individual aspect but also on the social aspect, as was done at the time by the Weimar Constitution (arts. 109-165) and more recently by the Constitution of the Italian Republic (arts. 2-4, 6, 8, 13-27, 35-46, etc.). Indeed, the latter has added to the traditional human rights the express mention of social rights and has integrated 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 nearly all the constitutions of the civilized world has not been accompanied by a doctrinal systematization that would safeguard them from encroachments by the power of the State. As early as the 19th century, a strong reaction—partly justified—arose against natural law theory, accused of lapsing into abstraction. The demand for greater concreteness gave rise to a school of thought that, consigning natural law to the rubble 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. Once this concept of sovereignty was posited as the foundation of the system, it logically had to deny the existence of any original subjective rights in man, reducing those rights—which the constitutions nevertheless continued to recognize—to a mere reflection of positive law, the only true law, which it credited with the power to elevate man to the status of a juridical person and his natural faculties to that of rights.
In this way, human rights were reduced to nothing, for a right whose existence depends on an absolutely autonomous will is not accompanied by any guarantee that it will be respected by that will as an inviolable limit to its action; that is, it is no longer a right. Various expedients have been devised by legal doctrine to overcome this difficulty, yet all have proven futile. Only a return to the never-faded classical conception of natural law can once again provide a solid foundation for human rights.
The recognition of human rights has also extended into the international sphere. Although common doctrine still hesitates to admit that the individual may be regarded in any respect as a subject of international law, neither the practice of States nor contractual law has ignored him. In this connection, the humanitarian interventions by which the European nations moved to defend populations oppressed by the Ottoman Empire—in Greece in 1827 and in Syria and Lebanon in 1860—should be recalled. Greater importance for the international protection of human rights attaches to the Treaty of Berlin of 1878, which drafted a veritable protective code for minorities, ensuring them the enjoyment of civil and political rights, freedom of worship, and the hierarchical organization of religious confessions. The League of Nations refined the protective system for human rights by concluding treaties with Poland and other States that had extended their borders after the First World War, imposing respect for the right to life and liberty, freedom of religious profession and public worship, civil and political equality, and the use of the national language—thus broadening the framework of human rights already outlined by the Congress of Berlin.
Almost simultaneously, in 1919, the Institute of International Law in New York unanimously adopted a resolution promoting an international declaration of human rights, intended to become the permanent charter of nations. This movement received the support of the Catholic Union for International Studies, which in 1931, through its own resolution, invited scholars to work toward the doctrinal elaboration of a declaration of human rights. The Charter of the United Nations, accepted in 1945 by 49 States, only partially satisfied these postulates, pledging in its preamble the States belonging to the organization to respect human rights and fundamental freedoms without distinction of race, sex, or religion. A charter, comparable in the international field to the Declaration of the Rights of Man of the French Revolution, was drafted by the United Nations and approved by 48 nations against 8 abstentions on December 10, 1948.
The framework 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, affirming that all men are born free and equal in dignity and rights. Among the individual rights proclaimed are those to life, liberty, and personal security, whose maintenance is reinforced by the prohibition of slavery in all its forms, of torture, degrading punishments or treatment, and by the recognition of the juridical personality of the person in all places. Equality, already affirmed in the preliminary article, is maintained in the form of equality before the law and in the treatment by the State. Personal security is addressed through the proclamation of the right not to be arbitrarily arrested or exiled and by the positive norm of being tried by an impartial tribunal in public proceedings. In this regard, the principle nulla poena sine lege is enshrined, excluding punishment for actions not considered criminal at the time they were committed and beyond the limits set by the law then in force. To render liberty effective, arbitrary interference in private life, the family, home, and correspondence is excluded.
In the section concerning the family and society, the rights to freely contract marriage and to found a family are included, within which men and women are perfectly equal, and it is 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 reaffirmed with a breadth that even classical liberalism did not attain. Equality in the enjoyment of civil and political rights also receives adequate consideration, though it is linked to the affirmation of the democratic principle of the will of the people as the foundation of authority and public powers, from which stems the juridical consecration of periodic consultations through free voting and universal suffrage with equal and secret ballot.
The series of social rights includes: the right to security, to satisfy the economic, social, and cultural needs indispensable to the dignity and fulfillment of the human person; to work, to its free choice, and to adequate remuneration with equal pay for equal work, which in any case must correspond to individual and family needs; to the freedom to form and join trade unions; to a standard of living sufficient to ensure the well-being of the worker and his family, to protect him against unemployment, sickness, accidents, and old age. Special mention is made of the rights of motherhood and childhood, for whose education the principle of the priority of parental rights is accepted.
The Charter of the United Nations, of which the rights have been briefly outlined, has its merits and its defects. It marks an unquestioned advance in international society, which has thus begun to concern itself with the human person in a truly collective manner. To its credit is the placing of the human person at the center of the declaration, partly overcoming individualism, and the overturning of the positivist conception that derived all subjective rights from the State’s legal order, treating human rights as fundamental and inviolable by public authority—a notable shift toward the thesis of natural law. In particular, the paragraphs on the family and education, where sound principles have taken root, deserve special note.
To the noted merits are joined not a few defects. The Charter of the United Nations has not surpassed the rationalistic conception of rights, and for this reason has left the rights of man without ontological foundation. Conceived as faculties inherent in the human person and arising from rational nature, not connected with its transcendent origin—whose mention has been positively excluded—they have little guarantee of imposing themselves upon the will of the State as categorical norms. 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 to property is denounced in too absolute a form, with no 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, it is nonsense to change religion. Finally, the Charter indulges in the enunciation of debatable theoretical principles, such as the one that authority and public powers are founded upon the authority of the people, upon universal and equal suffrage, which consecrates parliamentary government as a right.
The United Nations Declaration has no binding force for the States that have subscribed to it, which have merely assumed a moral commitment. It would remain inoperative unless integrated by a collective convention that would bring it into positive international law and endow it with organs invested with the power to oversee its observance. A draft convention has already been prepared by the United Nations Organization, but it is foreseeable that its acceptance will encounter very strong difficulties.