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HUMAN RIGHTS

BENJO E. CLARITE
LLB IV

SOURCES AND FOUNDATIONS OF HUMAN RIGHTS LAW

Basic civil rights and liberties are great achievements of


the past democratic revolutions. They are necessary although
not sufficient conditions of free human life in any society. A
critique of these rights which rejects or disparages them as
merely formal, abstract, or bourgeois is devoid of
historical sense and expresses an aggressive obscurantism,
particularly when it comes from societies which not only have not
overcome this bourgeois level, but have not yet even approached
it.
These rights are surely limited, and in conditions of a very
unequal distribution of wealth and of material and spiritual
misery in which great parts of the population are still condemned
to live, these rights indeed partly express only abstract
possibilities which, for economic reasons, cannot be brought to
life. But it is equally true that changes in economic systems
without an essential political democratization do not lead to
really new and more just forms of society. They tend to keep
alive authoritarian institutions analogous to those in feudal
society, in the same way as one-sided political democratization,
without economic democratization, made the survival of slavery
possible in the U.S. during a whole century from Washington to
Lincoln.
Socialist
revolutions
in
our
century
rejected imperial and
royal
autocracies
because
they
were
imperial and royal, and not because any autocracy is incompatible
with the principle of the sovereignty of the people. Power
remained completely concentrated: it was possible to command from
one single center not only executives, but also legislators and
judges. The individual was called citizen and comrade, but
the level of civil rights and of civil consciousness which had
already been reached in the eighteenth century remained a
distant, almost unattainable goal of political development.
Instead of being a civil servant responsible to citizens, the
state functionary keeps demanding proofs of political loyalty
from them. The power fully controls people instead of being
controlled by them. Instead of reaching the maximum of personal
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HUMAN RIGHTS
BENJO E. CLARITE
LLB IV

security when they behave in accordance with the constitution of


their country, citizens end up in jail when they interpret
literally those articles of the constitution which guarantee to
them freedom of speech, freedom of public manifestation and
demonstration, freedom of political organization.
It is true that bourgeois representative democracy can no
longer be considered the optimal form for the political
organization of society. It is, however, the necessary initial
level of a democratic society. The presupposition of democracy is
the recognition that demos (the people), is mature, able to make
basic decisions, able, among other things, to elect its
representatives. With nineteenth century political parties,
powerful mediators between citizens and their representatives
appeared on the historical stage. As a consequence of this
mediation,
the
influence
of
the
voters
over
elected
representatives was diminished, the power of political parties
and theirfactions in parliament was increased and alienated. This
alienation reaches its maximum when a single, monolithic,
authoritarian party monopolizes all political power. Under such
conditions, elections no longer express the peoples will but its
loyalty; they are no longer a right but an obligation. The
purpose of the principle of limitation of re-election was to
prevent a permanent alienation of the elected representatives
from the electorate, and in some bourgeois societies it has been
strictly respected for the last two centuries. By contrast, the
institution of ruling cadres who can be removed only by the
action of biological laws or as a consequence of disloyalty to
the sovereign leader is much closer to a feudal than to a new
socialist society.
The present struggle for the practical realization of civil
and human rights is a new dimension of contemporary emancipatory
aspirations. To the extent that it stops being a mere phase of
confrontation between governments and ideological camps, and
achieves the character of a mass movement, it will contribute
essentially to the abolition of present-day barriers to human
freedom and social justice.

HUMAN RIGHTS
BENJO E. CLARITE
LLB IV

To be sure, in different societies it will assume different


forms and priorities. In the countries of developed capitalism it
is possible to use the level of political liberties already
achieved in order to abolish present-day forms of economic
exploitation and social oppression. In the countries of state
socialism, an obvious prior need is the overcoming of state
absolutism and a thoroughgoing political democratization. In the
countries of the Third World it is essential that the basic
material and cultural preconditions for the implementation of
human rights be created, the growth of oppressive institutions
and mechanisms adopted from modern industrial society be avoided,
and the attempt be made to preserve still existing pre-industrial
forms of human solidarity and autonomy. In none of these
different situations will a higher level of human rights and
liberties emerge spontaneously, nor will it be granted to a
society by its government: it will be achieved only by the
resolute struggle of various emancipatory movements. Even in the
most
difficult
conditions,
even
without
any
political
organization, strong, fearless individuals and groups may keep
alive great emancipatory ideas of the past, and by their own
example may contribute to the awakening of an elementary civil
conscience.