Human rights are the fundamental rights that humans have just for the fact of being humans. These rights are neither created nor can be abrogated by any government. They are based on the principle of respect for the individual. Each moral and rational person deserves to be treated with dignity – no matter who they are or where they live – because they are alive. Nowadays, however, the recognition that every person has equal rights whatever his sex, wherever he lives and independently from his ideas, his religion and his personal and social condition is a fairly recent. And it arises from the blood, the fights and the suffering of the previous generations.
The first legal instrument which guaranteed basic civil rights was the Magna Charta Libertatum, commonly called Magna Charta (the “ Great Charter”) and written in 1215. When John Lackland became king after Richard I “the Lionheart”, he started a war in France to defend his territories and this was only possible by raising the taxes. This measure adopted by the king created discontent among the English and Norman barons, who protested against the king’s decision. The English army lost France and in 1215 the barons revolted and defied the king. At this point the king was forced to seal a legal document that would put a limit on his powers: the Magna Charta. It called for a guarantee of protection to all free men from illegal imprisonment (Habeas Corpus) and seizure of property. It also asked for swift justice and scutage limitations and established a committed of twenty-five barons with a mandate to wage war on the king if he failed to respect the agreement. The charter represented a small step forward in the limitation of the king’s power, even if it recognized rights only to certain categories of people, such as nobles, merchants and clergymen. However, King John only sealed the Magna Charta because he was forced to, but he didn’t agree with any of its principles; so, after a short period, he returned to war against the barons. Although the Magna Charta had been re-issued by John’s successors, in later centuries, it was almost forgotten, but it was still looked upon with pride by the people as evidence of a supposed history of legal rights in their country.
This, even though the Magna Charta represented a solution to a specific situation rather than a declaration of rights for all people, it came to be seen as a kind of Bill of Rights. When the latter kings violated or put aside the Magna Charta, as James II and his brother Charles did (he tipped the scales by dissolving the parliament on several occasions) the parliament and the people revolted, causing the Glorious Revolution to happen. The Glorious Revolution refers to the series of events in 1688-1689 that took place after a long period of crisis characterized by violent fights and by the attempt of making England an absolutistic monarchy. It has been seen as a turning point in the development of a modern and democratic state which guarantees social and political rights to citizens. The term “Glorious Revolution” is used to describe the peaceful way in which Parliament asserted its right over the monarchy in 1688. In fact it was also called “Bloodless revolution” and celebrated the lack of bloody fights in the period between 1685 and 1689, starting with the death of Charles II and culminating in the Bill of Rights in 1689. In 1685 Charles II died and was succeeded by his brother James, who was a professed Catholic with strong ties to the Pope and to King Louis XIV of France. He soon tried to give the Catholic Church of Rome the same dignity as the Anglican Church. Protestants were worried, so a group of Protestant nobles invited William of Orange to come over with an army. William of Orange was the husband of king James’s older and Protestant daughter Mary. He was a kind of homo novus, because he was the first of his name to ascend to the English throne. In those times the nationality of the monarch was irrelevant, it was the religion that mattered. In England James II was seen as a threat to Protestantism in England. The success of France under Louis XIV made absolute monarchy look like the way of the future. James II admired France and tried to create a centralized authority, with a large standing army to strengthen his authority. English people, therefore, saw William as their liberator. In fact, after James II was exiled, William of Orange and his wife Mary were established as joint monarchs. Certainly the most important thing that the new king did was sealing one of the first form of modern constitution: the Bill of Rights. The Bill of Rights was written by the English parliament to avoid a monarchy where the king could rule without limitations as in France, at the time of Louis XIV. The Bill of Rights ratified some of fundamental rights:
The freedom of a speech in the parliament;
The prohibition to the king to abolish laws or impose taxes without the parliament’s consent;
Free election for the parliament;
The prohibition to the king to keep an army in time of peace without the consent of the parliament;
The refusal to be submitted to a Catholic king;
The parliament must meet frequently.
So the Glorious Revolution was important because it established British Parliament’s authority over monarchy and the supremacy of the Anglican Church over Catholic interests in England. In wider terms, we can say that this revolution was one of the most important in history, because it was also a demonstration of the right of people to change their form of government, if they believed that government no longer protected their rights. The Glorious Revolution, moreover, had been inspired by two philosophers of that period:
John Locke and Thomas Hobbes, who argued in opposite ways, one for absolute kingship and one against. In their works, they both wrote about a State of Nature, in which man exists without government, and both speak about risks in this state. The philosopher John Locke was one of the main supporters of human rights, which were proclaimed with the Glorious Revolution in England in 1689. Initially, Locke agreed with the absolutistic theories formulated by Hobbes, but later - after the fall of the Stuarts - he understood that absolutism doesn’t help men to live peacefully and to respect the state. Locke believed that in the State of Nature all men are equal and can accumulate money and properties in order to fare well. However, as the human being tends to gather up these things quite egoistically, he excludes others. In this case, the pacific cohabitation of human beings is transformed into anarchy, a completely chaotic situation. For this reason Locke didn’t believe that to avoid this danger there had to be an absolutist monarchy, but what was necessary was a state that would ensure peace among men and that would wisely and equally distribute riches among the citizens. However this does not mean that the state is authorized to violate human rights, but it has to safeguard public Welfare, always respecting these rights. Locke wants that all men would keep their rights except one: the right to self-justice. The office of justice pertained to the State. Locke considered fundamental the rights to freedom, to private property and to life. In order to let this happen, Locke asserts that a constitutional monarchy works better, as the joint monarchy of William of Orange and his wife Mary II. By contrast, Thomas Hobbes, who lived before Locke, instead believed that if human beings wish to fare well they have to give up all of their rights retaining the right to life. In Hobbes opinion, on this basis it is possible to build a civil and political society, because only the king can rule, who sits above laws and any form of authority. In fact, in the State of Nature there was a war of all against all (bellum omnium contra omnes), caused by the natural animal-like instincts of men (homo homini lupus). This, according to Hobbes, in the State of Nature the only possible condition is anarchy. To tackle this, Hobbes proposes an absolutistic form of government because it is better than no government. So, Hobbes theorizes that a good State should be held by a single person who administers all the powers. Moreover, regicide is not permitted, under any circumstances. But does an absolutistic monarchy really bring about order and peace? From this point of view absolutism is inadequate because people lose their rights and they are completely subject to the king. Moreover, if the monarchy becomes tyranny, there could be a situation where people are angry and unsatisfied.
As during the Glorious, a following revolution had been inspired by philosophers: the French Revolution. In particular, it was the followers of Jean-Jacques Rousseau who prevailed during the French Revolution. The revolution had started with the nobility which spotted the weakness of the French monarchy. This resulted in the nobles forcing a meeting of the “Etats Generaux”, an institution they usually controlled, by which some of the nobles had hoped to enhance the power of the nobility at the expense of the monarchy, and some had hoped to institute Enlightenment reforms. Edmund Burke was one of the first to suggest that the philosophers of the Enlightenment were somehow, responsible for the French Revolution. The philosophic and political doctrines of the “ Enlightenment” had a great influence in Europe and constituted a model for similar documents drawn up during the French Revolution. The most important among the revolutionary documents was the Declaration of the Rights of Man and the Citizens (La Déclaration des droits de l'homme et du citoyen), adopted by the National Constituent Assembly as the first step toward writing a constitution for the Republic of Frence. It states that “…ignorance, forgetfulness or contempt are the only causes of public misfortunes and the corruption of governments…” and proclaims that all citizens are to be guaranteed the rights of “liberty, property, security and resistance to oppression”. Men, in fact, have a tendency to forget their natural rights and rulers have a tendency on take advantage of that. So, it just reminded citizens what their right are and made sure that these rights could be respected by any authority. We can say that from that moment on, people broke free from the king’s absolute power and founded a state in which powers were divided and in which there weren’t subjects anymore, but just citizens. As said before, the Declaration and its contents are at the basis of the French Constitution of 1751, which marked the end of the absolute power and the start of a constitutional monarchy. A lot of efforts were made to discuss its own originality and, for example, to connect its substance to the Declaration that the English colonies of America voted during the struggle for independence. However it mustn’t be said that without them the French Declaration wouldn’t have existed. The French philosophical movement in the XVIII century could be summarized in that act; the thoughts of Montesquieu, Voltaire and Rousseau collaborated towards this. The basic concepts of the French Revolution were the same as those of the Glorious Revolution, namely “freedom for all free people” (Liberté, Egalité, Fraternité). Even if the French Constitution was very important, the first truly democratic constitution was approved in Germany and inspired all the following constitutions and passed on 11 August 1919, after the end of World War I. One of the members of the committee that drafted the Constitution was Max Weber, a German sociologist who was best known for his political ideas, in particular for his enormously influential definition of the state as community “that successfully claims the monopoly of the legitimate use of physical force within a given territory”. At the beginning of the World War I, Weber supported enthusiastically the German aims and volunteered for the Army. In 1915, he changed his mind and became a pacifist. After the war, Weber founded the German Democratic party and helped to draft the constitution of the Weimar Republic. At that time, it counted as one of the most progressive constitutions of the world, providing an extensive catalogue of fundamental rights. It also provided the intervention of the state in areas such as health, education, social security, economy. With these constitutions the so-called Welfare State kicks off and spreads in all European countries. The Welfare State is a concept of government based on the principle of equality, in which the state guarantees and promotes the social and economic well being of its citizens. It is made up of three components:
financial services (pensions, benefits)
social services (health care, education)
non cash benefits (medications)
But how was the concept of welfare introduced in modern society? To answer this question we may have to go back in time a little bit. The concepts of welfare and pension were introduced in Islamic law in the 7th century under the Rashidun Caliphate (632-661) with the zakat, which means “charity” and is one of the five pillars of Islam, and the Sizya tax which was a fee for protection provided by the Muslim ruler to non-Muslims. These two taxes were collected in the treasury of an Islamic government and were used to guarantee an income for the needy, including the poor, orphans and disabled. Thus, we can consider the caliphate as the first form of Welfare State. In Europe there have been three major phases that led to the birth of the modern Welfare. The first phase traces back to 1563, when Elizabeth I passed her Act for the relief of the poor, which required all parish residents with ability to pay to contribute to poor collections. Elizabeth I continued passing legislations aimed at the relief of the poor until 1601, when the Elizabethan poor law created a national poor relief system for England and Wales. The second phase dates back to 1883, when the German Chancellor Otto Von Bismarck introduced old-age pensions, accident insurance and radical care. These measures adopted by Bismarck formed the basis of the modern European Welfare state. Finally the third phase, the phase of the true modern Welfare, begins in 1942 with the Beveridge Report, called after its chairman, measures to help the needy and recommended that the government would find ways of tackling what the report called the five giants “Want, Disease, Ignorance, Squalor and Idleness”. In April 1945, after the World War II, delegates from fifty countries met in San Francisco full of optimism and hope. They gave birth to an international organization in order to promote peace and prevent future wars. The ideals of the organization were stated in the preamble to its proposed charter: “We, the peoples of United Nations, are determinate to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” The Charter of the new United Nations, organization went into effect on October 24, 1945, a date that is celebrated each year as United Nations Day. Worlds leaders wanted to guarantee the rights of every individual everywhere. That’s why, at the first session of the General Assembly in 1946, the document, which would later become the Universal Declaration of Human Rights, was taken up. After two years of talks within the UN Human Rights Commission, a breakthrough in human rights occurred; the Commission set out to draft the Universal Declaration of Human Rights. Roosevelt referred to the Declaration as a sort of international Magna Charta for all mankind. It was adopted by the United Nations on December 10, 1948.
“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people… all human beings are born free and equal in dignity and rights”
This is what the Declaration unequivocally proclaims in its preamble and in Article 1.
The Declaration of 1948 is just the final result of many years of fights. At the very beginning, people weren’t aware of their rights and so accepted the abuses of the powerful and social inequalities with resignation. In fact, human rights didn’t develop at the same time, but their development increased as citizens started organizing in order to claim and enforce respect of their natural rights. That’s why we talk about four generations of rights:
The first generation is the generation of civil and political rights, acquired during Enlightenment. Their recognition was solemnly stated in the Declaration of the Rights of Man and of the Citizen. The main civil rights recognized are: freedom of opinion, freedom of expression and press, personal ownerships, the right to personal security in relation to justice and police, equality before the law. The political rights recognized are: equal access to public, participation in elaboration of laws, control of taxes, citizen control over the administration.
The second generation of human rights is related with the battles fought by workers during the XIX and the XX century. They are fundamentally economic and social rights. They guarantee different members of citizenry equal conditions and treatment. Some of these rights are the right to work, freedom of association, the right to education and learning, the right to insurance for sickness, old age and disability.
In the third generation of rights we can indentify the so called solidarity rights, rights which can not be exerted only by and individual, but only collectively, such as: the right to peace, the right to development, the right to humanitarian assistance, environmental law, the right of sexual minorities, ethnic religious, linguistic, etc.
In the fourth generation of rights are included the so called rights related to genetic engineering, which are based on the doctrinal debate in what regards the recognition or prohibitions of certain activities. One of these rights is the right to euthanasia, which is practice of ending life in a painless manner. Voluntary euthanasia means that a person – who is terminally ill, who feels that their life is not worth living because of intractable pain, who makes their decision freely and voluntarily (and is not suffering from treatable depression) – should have the option, the right of requesting assistance in dying with dignity, instead of being kept alive by machines But what place do all these rights occupy in the contemporary world? It 's still the preferred/chosen tool to organize social reality and relations between individuals and peoples? If it so, how are the limits changed from its traditional modern use? If these transformations are to be traced in the contemporary world, it is necessary to assume a cross-sectional look through multiple and contemporary dimensions in order to identify them. Already Kelsen, in the twentieth century, had completely revolutionized the theory of law, carrying the concepts of Order - State - Sovereignty in a temporal space. He imposes upon 'time' the nature of conceptual tool. It follows, therefore, Kelsen's definition of the 'disenchantment', which is a process that has led to the weakening of the traditional substantialism of legal concepts. It seems obvious, then, that behind every statement about the rights, there is the will of men, even of leading groups make appeal to natural rights, only to betray the paradigm they impose. The law is delivered to these dynamics, not as a mere instrument of power, rather than as a symbol of an achieved ductility that can only reflect the diverse and contemporary visions of the world. It can be said, paradoxically, that the above process tends - in the new cultural sphere - to become a communis opinio: a widespread attitude about the actual functionality of the right to interests and beliefs different and cohexisting. Let us examine, now, the development of two key concepts: individualism pattern and communitarian pattern. We begin our political and philosophical excursus with Thomas Hobbes who, in his Leviathan, speaks about the 'State of Nature' or the 'legal' concepts that we are dictated by upright reason. But this depends on political stability and on certain social conditions and: Hobbes thus accepts a certain natural-law system, but all the precepts that it expresses are subject to an 'universal law of nature, imposing man, first, to save himself (individualism). By contrast, there is John Locke: he also talks about the 'State of Nature', but understood as a state of law, challenged only by the fact that the individual is called to judge itself; this partial judgment will be cause of disagreements and conflicts. Men, aware of the risk that dangerous conflicts of interest could arise between them, agree that it is desirable to unite them into one political body. This implies that the social body sets up a power to which all men are subject and where the majority is able to decide for the rest (communitarianism). These are the thoughts that, in the past, have animated the discussion about individualism and communitarianism. In the course of time, different opinions have been introduced, among them there is that of a local scholar: Roberto Esposito (Professor of Theoretical Philosophy now at the Italian Institute of Human Sciences in Naples). His merit is to have proposed a new vision of the concept of the community or, more specifically, of communitas: « [...] The community is not the place of contraposition, but that the overlapping between res and nothing. What (men) divide [...] is rather an expropriation of their substance which is not limited to their 'having' but that involves and affects their own 'being subject. » Men, to create communities, share a lack, or their respective community bond. And to get a community, you need to make the category of immunitas shine. Therefore immunization acts on a need to be, rather than on a being given once and for all. To immunize, we must be a community, in order to get that communitarian bond which initially we are lacking. In this way, Ciro Sbailò, in 'The State as an option in a multi-ethnical society. Ways to address the problem of western legal ethnocentrism without adopting cultural relativism ', refers to this very complex process of political and constitutional transition, peculiar of advanced democracies, in relation to' mainland Europe where we compare the main cultural, religious and legal traditions (Common Law and Civil Law, Roman Law and Islamic Law). Therefore, we have to consider the problem of ethnocentrism: according to which one particular ethnic group is seen as somehow superior to all others. The word ethnocentrism derives from the Greek word ethnos, meaning “nation” or “people,” and the Latin word centrum (center). A common idiom for ethnocentrism is “tunnel vision”. In this context, ethnocentrism is the view that a particular ethnic group’s system of beliefs and values is morally superior to all others; anyway, this phenomenon doesn’t only reflect a simple psychological attitude, but a structural element on human rights and legal culture of the West. In fact, as Sbailò says: « […] the conflict between the policies on human rights and the respect for different cultural identities needs an epistemological kind of investigation on our legal culture, in order to distinguish ‘the coefficient of oscillation’ of our conceptual pillars». Sbailò ,therefore, examines the possibility of incorporating ethnocentrism in an integration process, through the interpretation of the state as a 'state of culture'.Regarding this, we have to review the current situation in Europe and the problem of integration of the Islamic community (in fact, the ethnocentrism is highlighted in this community).The Muslim community is the most numerous one formed by no Christians in the Western world, including Europe. In the Western reality, we recognize two of the Islamic settlement patterns: that of ‘Muslimtown’ and that of 'diffusion pattern’. The functional space, in the industrial city, tends to coincide with the physical one and the definition of 'identity' goes hand in hand with spatial demarcation. Conversely, in the post-industrial society, the confinement is presented as 'option': the 'diffusion' pattern in Europe, is supplanting that of the citadel, of the Muslimtown. The Islamic community lives the so-called 'deterritorialization', a kind of split between its own legal system, in relation to that of the host country.The advent of this phenomenon issues the problem of how to reconsider the constitutional pact in force in the host country.Anyway, in addition to this, the guest community also lives an ambivalent relationship with the legal system of the host country. On the one hand this is a guarantee of freedom, on the other one it can be perceived as a threat to the community because it is based on freedom of conscience. This leads us to feel the Western secular state as a stimulus to a greater awareness of being Muslim. The Western Islam launches to the society a dual challenge: the cultural ethnocentrism and the renunciation to their own identity and values. Is this an Europe where the 'diversity' is an asset and not a threat to the identity? Much of this depends on how Europe will be able to bring to light its legal ethnocentrism and build a political integration project. A linguistic and cultural unity would be desirable, since it is configured in a tool given by the state to overcome all the barriers and build a common cultural heritage.Therefore, the Western Culture awareness of the ethnic ch[i]aracter has originated two opposing and complementary attitudes: on the one hand there is the 'cultural relativism', that is the view that individual beliefs and values systems are culturally relative. According to this theory, no one ethnic group has the right to say that their particular system of beliefs and values, their worldview, is in any way superior to anyone else’s system of beliefs and values. What’s right for one culture might be wrong for another and that’s alright. There is no absolute standard of right and wrong by which to compare and contrast morally contradictory cultural values.On the other hand there is the refusal of the “otherness” in the name of one’s own roots, defended these because they don’t qualify as universal.With regard to this issue, is the acceptance based on the awareness of one's identity possible? Max Weber puts ethnicity among the sources of action and community. He presents the so-called 'ethnic roots' as a means for the realization of political aims and this outlines the concept of 'ethnic honour' or of the specific mass honour, because it is accessible to anyone who belongs to the original putative community. There are differences between nationality and ethnicity. In Weber, nationality is rationalized as an ethnic group, in spite of the same ethnic group is the result of a cultural process.In this way, what’s the definition of ‘nation’? Nation is the term used by the West World to rechristen ethnos, in order to rationalize it. Such as ethnicity, in fact, the nation is an affirmation of the principle of nationality. It is identical with the whole, since it belongs to it: in fact, the nation mediates the relationship between the individual and community. While the ethnos originates from myth and to his native land, the nation originates from the history, and makes so a real project. For this reason, the rediscovery of the national identity against the cultural integration process which we have already discussed, is itself an aporia: national identities (and nationalism) aren’t original, but the result of a historical costruction made by the State.« Law is law […] if it refers to a norm or to a constitutional statement. Law is nothing but a human act with multiple meanings, among them it is possible to choose only one. This means to decide in the sense of a personal assumption of responsability».We conclude our essay with this definition, proposed by Alfonso Catania - professor of Philosophy of Law and Theory of Law at the Federico II University of Naples and at the University of Salerno.
- Ciro Sbailò, The State as an option in a multi-ethnical society. Ways to address the problem of western legal ethnocentrism without adopting cultural relativism - Alfonso Catania, Metamorfosi del diritto - Decisione e norma nell' età globale, Roma-Bari, Laterza, 2008, p. 207 - Roberto Esposito, Communitas - Origine e destino della comunità, Torino, 2006, p. 163