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Jurisprudence Project

Natural Law Theory and It’s Impact on Human Rights

Submitted to:

Dr. Kaumudhi Challa

Faculty of Jurisprudence

Submitted by:

Kamaljeet Meena

Roll no.68

Semester V, Section C

B.A. LLB (Hons.)

Submitted on:

November 30 , 2018

HIDAYATULLAH NATIONAL LAW UNIVERSITY Uparwara Post,


Abhanpur, New Raipur (C.G.) – 492002

DECLARATION

I, kamaljeet meena have undergone research of the project work titled “Natural law Theory
and Its impact on Human Rights ”, as a student of Jurisprudence. I hereby declare that this
Research Project has been prepared by the student for academic purpose only, and is the
outcome of the investigation done by me and also prepared by myself under the supervision of
Dr. Kaumudhi Challa, Faculty of Jurisprudence, Hidayatullah National Law University,
Raipur. The views expressed in the report are personal to the student and do not reflect the
views of any authority or any other person, and do not bind the statute in any manner.

I also declare that this Research Paper, or any part thereof, has not been or is not being
submitted elsewhere for the award of any degree or Diploma. This report is the intellectual
property of the on the part of student research work, and the same or any part thereof may not
be used in any manner whatsoever in writing.

Kamaljeet meena

Semester – V

Section – C

Roll No. -68


CERTIFICATE OF ORIGINALITY

This is to certify that Kamaljeet meena , Roll Number 68, student of Semester V, Section C of
B.A.LL.B.(Hons.), Hidayatullah National Law University, New Raipur (Chhattisgarh) has
undergone research of the project work titled “ Natural Law Theory and It’s impact on Human
Rights” in partial fulfilment of the subject of Jurisprudence. His performance in research work
is up to the level.

Date : November 30 , 2018. Dr. Kaumadi Challa

Hidaytullah National Law


University

Atal Nagar (492002)


ACKNOWLEDGMENT

This research project could not have been complete without the help and guidance of the
various persons who gave me their time and provided me with the resources. It is due to their
kind cooperation that I was able to finish my project in the given time. To mention and thank
all of them is not feasible but their contribution to my project is appreciated nonetheless.

This project wouldn’t have been possible without the help of my teacher Dr. Kaumudhi
Challa, Faculty Member at HNLU, who always helped me with information and advice
whenever I needed. He has truly been the mentor that I needed for the completion of this
project. The administration has also been kind enough to let me use their facilities for research
work. I am grateful for this sincerely.

Kamaljeet Meena

Section – C

Roll no. - 68

Semester - V
S.no Title Page no.

1. Declaration I

2. Certificate Ii

3. Acknowledgment iii

4. Introduction And Research Methodology 1


I. A. Introduction
1
I. B Research Methodology 7

5. Chapter One: Interrelationship between human rights and natural law. 12

6. Chapter Two: Evolution of Human rights. 15

7. Chapter Three: Human Rights and Legal Theories. 17

8. Chapter Four: Challenges to Universality of Human Rights. 22

9. Conclusion 27

10. Bibliography 28

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Chapter one: Introduction

In the second half of the 20th century, the growth of interest in human rights has been
accompanied by a revival in natural law. Considering why this should be so, critically exploring
the interrelationship between human rights and natural law; and also, by using concrete
examples, critically assess ONE or TWO theories that critique human rights with particular
emphasis on the grounds for such critique. There is an assumed correlation between what is
good and what comes naturally. For example, parental affection, heterosexual love and support
for the elderly are all natural concepts, and therefore, arguably, good. Anything that ignores or
distorts human nature is bad. Legislators and lawyers have referred to naturalistic arguments
in the past, particularly where the issues at stake are those not already covered by legal
precedent1. Harris notes that the jurists who developed the law of the Roman Empire frequently
made references to the nature of the case as a basis for dealing with matters not covered by
previous authority. The compilers of the Corpus Juris used the word ‘naturalis’ as a tag to
distinguish natural obligations from their counterparts in the Jus Civile.2

More recently, in Corbett v Corbett3, a judge held that a marriage between a man and a person
who had undergone a sex change was a nullity because it could not fulfil the natural,
biologically determined consequences of marriage. Such lawyer type references to the natural
helped evolve the concept of natural law. Thus natural law has evolved as the basis in times
as a judge to determine the legality of a laws especially human rights laws because they are
believed to be given to humans by the virtue of their existence

1
1. Bedau, H A, Anarchical Fallacies: Bentham's attack on Human Rights in Carter, I C & Ricciardi, M (13
March 2001) Freedom, Power and Political Morality, Palgrave Macmillan
2. Bentham, J (1977) cited in Powers, M (2005) Bioethics as Politics: The Limits of Moral Expertise, Kennedy
Institute of Ethics Journal 15.3 305-322
3. Brownsword, R (1 December 2005) Happy families, consenting couples, and children with dignity: sex
selection and saviour siblings, Child and Family Law Quarterly CFam 17 4 (435)

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RESEARCH METHODOLOGY

Problem of the Study

The evolution of human rights and the role played by the natural law school in the formation of
these rights with the evolution of major legal systems all around the world. Both the human rights
as well as the natural law school have evolved with time and to find the interrelation and the impact
of one on the other. Moreover, to identify the central tenets from incidental ones or individual ones
is a tough task in itself for the purpose of such comparison.

Rationale

This study is important to not only understand the evolution of human rights separately but also
to understand the impact of the natural law school on the evolution of human rights including
comparison between them and outline their similarities and differences. This brings out their
central philosophy, as distinct from merely ancillary ideas and also helps us understand the two
theories and their background as well as the role they play in shaping each other.

Objective

The objectives of this project are:

1. To study the concept of human rights.


2. To study the influence of natural law school on human rights.
3. To study the central tenets of natural law school.
4. To study the jurisprudential aspect of both natural law school and human rights.

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Review of Literature

1. “Natural Law and Political Realism in the History of Political Thought” by Dyson Rumble.

This book completes the account of natural law and political realism as historical traditions
of political thought. In it, the development of those traditions is traced from the seventeenth
to the twenty-first centuries, with special emphasis given to theories of human nature and
the 'natural' or 'human' rights doctrines that have been derived from them. These things are
examined also in the context of the comparatively recent internationalization of political
theory.

2. “Natural Law: Reflections on Theory and Practice” by Jacques Maritain


Can there be universal moral principles in a culturally and religiously diverse world? Are
such principles provided by a theory of natural law? Jacques response to both questions is
"yes". The book, selected from the writings of one of the most influential philosophers of
the past hundred years, provide a clear statement of Maritain's theory of natural law and
natural rights. Maritain's ethics and political philosophy occupies a middle ground between
the extremes of individualism and collectivism. Written during a period when cultural
diversity and pluralism were beginning to have an impact on ethics and politics, these
essays provide a defense of natural law and natural right that continues to be timely

3. “Indigenous Peoples, Customary Law and Human Rights - Why Living Law Matters” Tobin
Brendan
This highly original work demonstrates the fundamental role of customary law for the
realization of Indigenous peoples' human rights and for sound national and international
legal governance. The book reviews the legal status of customary law and its relationship
with positive and natural law from the time of Plato up to the present. It examines its
growing recognition in constitutional and international law and its dependence on and at
times strained relationship with human rights law. The author analyzes the role of
customary law in tribal, national and international governance of Indigenous peoples' lands,

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resources and cultural heritage. He explores the challenges and opportunities for its
recognition by courts and alternative dispute resolution mechanisms, including issues of
proof of law and conflicts between customary practices and human rights. He throws light
on the richness inherent in legal diversity and key principles of customary law and their
influence in legal practice and on emerging notions of intercultural equity and justice

Hypothesis

The similarities between natural law school and human rights, and the influence of the former on
the latter.

Nature of the Study

The nature of the study in this project is doctrinal and is primarily descriptive and analytical. This
project is largely based on secondary & electronic sources of data. Books, case laws, journals &
other reference as guided by faculty of Jurisprudence are primarily used for the completion of this
project.

Chapterization

This project has been divided into 4 chapters. Chapter 1 explains the inter relationship between
human rights and the natural law. Chapter 2 includes the evolution of human rights. Chapter 3
explains the legal theories and human rights. Chapter 4 explains the universality of the human
rights.

Time Limit

It took the author roughly 10-15 days to complete this project in its entirety.

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Contribution

There is not much research specifically on the comparison of the two schools of throught discussed
in this paper, at least not directly. Therefore there are certain inferences that had to be made after
the study of these schools and their central tenets myself, rather than relying on previously
published papers and books and utilization of knowledge from other platforms.

Limitation of the Study

The author has only dealt with certain authors that have been central to the development of thought
of certain sociological schools. Moreover, due to the lack of literature present on the comparison
of the two schools, and the lack of time and resources, the author has only been able to compare
the two schools on limited grounds.

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Chapter 1: Interrelationship between human rights and natural law.

Classically, natural law is “right reason in agreement with nature”4 It is “universal and
immutable”5, “unchanging and everlasting”6 available at all times and in all places to those whose
responsibilities include enacting and developing the law. It is a concept of justice so far as it is
there to right wrongs and properly distribute benefits and burdens. It is also a higher law, in that it
is superior to any law created by a political authority: it is not possible to be freed from its
obligations by “Senate or People”7. Natural law determines whether or not ordinary laws are
morally binding on subjects. The rules of natural law are not created by anyone, but are instead
discoverable by reason. Since all men have natural essences, or ends (just like in nature, to become
an oak tree, for example, is an end for an acorn, knowledge of those qualities allows us to draw
conclusions by rational steps about what justice requires to best fulfil man’s ‘end’ .Although some
natural law philosophers have cited God as the basis for the existence of these natural laws, the
theory does not fail if God is taken out of the equation. Even if God does not exist, it is through
that natural law would “have the same content”; and just as God cannot cause that two times two
shall not be four, so he cannot cause the intrinsically evil not to be evil.8

According to Acquinas, human laws derive their legal quality and power to bind in conscience
from natural law, guided by a reasoned assessment of the common good. The content of the law is
deducible from the first principles of natural law, which include, for example, that one should ‘do

4. Canovan M (1998) Totalitarianism, in Craig, E (Ed), Routledge Encyclopedia of Philosophy London: Routledge.
5. Cicero, De Republica iii, xxiii, 33 cited in Harris, J W (2004), pp.7-8
6. Coleman, J & Leiter, B (1993) Determinacy, Objectivity, and Authority, University of Pennsylvania Law Review
142, p. 549, reprinted in Andrei Marmor (ed) (1995) Law and Interpretation: Essays in Legal Philosophy, Oxford
University Press, Oxford, cited in Rosati, C S (May 2004)
7. Columbia Electronic Encyclopedia (2007) Natural Rights
8. Dolhenty, J, An Overview of Natural Law Theory, retrieved October 26, 2007,
from http://www.radicalacademy.com/philnaturallaw.htm
9. Donnelly, B (1 March 2007) Natural Law and Ecocentrism Journal of Environmental Law 19 JEL (89)

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no harm to no man’. Any apparently conflicting law is a corruption of the law and so is not
binding9: in the Seventeenth Century, when it was still accepted that the Courts could hold invalid
any Act contrary to natural law, it was said that “even an Act of Parliament made against natural
equity, as, to make a man judge in his own case, is void in itself”10

Intrinsic to the concept of natural law is the fact that humans have rights ascribed to them that they
possess merely by virtue of being human11. They follow directly from the necessary ends fixed by
human nature, that is “from the single fact that man is man”12. Schneider describes the basic human
rights as “the right to existence or life, to personal freedom, to the pursuit of perfection of moral
and rational life, to the pursuit of eternal good, to keeping one's body whole, to marrying according
to one's choice and raising a family, and to free associations”.

Whilst not all would agree exactly on what set of rights follow directly from what is ‘natural’,
these arguments have been used throughout history to support action taken when ‘natural rights’
have been infringed. The American Colonists justified their overthrow of British rule in 1776 on
the basis that the government had impaired their rights to ‘life, liberty and the pursuit of happiness’,
claiming that it was ‘self evident that man was endowed with such rights’. Indeed, that phrase is
the cornerstone of the American Declaration of Independence which states: “We hold these truths
to be self-evidence, that all men are created equal, that they are endowed by their Creator with
certain unalienable rights, that among those are life, liberty and the pursuit of happiness”.13 This
is an adaptation of the phrase used by John Locke, who believed that “the state of nature has a law

10. Dworkin, R (1 March 2004) Hart's Postscript and the Character of Political Philosophy, Oxford Journal of Legal
Studies OJLS 2004 24 (1)
11. Ewing, K D (2000) The Politics of the British Constitution, Public Law 405
12. Fitzjames Stephen, J (1967 Edition) Liberty, Equality, Fraternity, R J White (Ed) Cambridge University Press
(first published 1873) cited in Warburton, N (1999), p.68
13. Foster, C (2001) The Ethics of Medical Research on Humans, Cambridge University Press at 13, cited in
Morrison, D (1 March 2005)

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of nature to govern it which obliges everyone. And reason, which is that law, teaches all mankind,
who will but consult it, that being all equal and independent, no one ought harm another in his life,
health, liberty and possessions. During the 19th Century, natural law theory lost a lot of its
influence as positivism, materialism, utilitarianism and Benthamism became dominant. In the 20th
century, however, particularly towards the second half, natural law theory received new
attention12. This can partly be attributed to peoples’ reaction to the rise of totalitarianism:
dictatorships such as those held by Hitler in Germany and Stalin in the USSR, based on terror and
on mass support mobilized behind an ideology prescribing radical social change14 Such
dictatorships are linked to the other factor that can be attributed to the rise in interest in natural
law: an increased interest in human rights throughout the world14. In particular, the barbarism of
the Second World War moved the United Nations General Assembly to adopt the Universal
Declaration of Human Rights in 1948 which, whilst not legally binding, urged member nations to
promote a collection of human, civil, economic and social rights. The Assembly called these rights
part of the ‘foundation of freedom, justice and peace in the world’. These words are echoed in the
preamble to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment 198415, which has been signed by the United Kingdom, Spain and Chile and by over
100 other nations in acknowledgement of a “clear recognition by the international community that
certain crimes are so grave and so inhuman that they constitute crimes against international law
and that the international community is under a duty to bring to justice a person who commits such
crimes”. The preamble acknowledges that “recognition of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world” and
recognises that “those rights derive from the inherent dignity of the human person”16

14. Halsbury’s Laws of England: Conflict of Laws (Volume 8(3) (Reissue) 5. Family Law (1) Marriage (ii)
12

Capacity to Marry a. Legal Capacity 229. Lack of age


15. Halsbury’s Laws of England: Statutes (Volume 44(1) (Reissue) 5. Statutory Interpretation (4) The Interpretative
Criteria (v) Principles derived from Legal Policy 1443. Judge should be impartial
16. Harris, J W (2004) Legal Philosophies (2nd Edition) Oxford University Press, Oxford

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Chapter 2: Evolution of human rights

Human rights have roots deep in the mists of time yet the term itself dates back barely sixty years
to the international discussions preceding the founding of the United Nations. Since 1945, the
scope of human rights has been elaborated and the concept now permeates the fabric of
international society.

Although human rights issues continue to be debated and contested, the longer history of human
rights is often unexamined and even forgotten. Human rights, rather than being a 20th century
phenomenon, marks both a culmination of and a transition from the Western natural law and
natural rights traditions.13

Human rights are rights possessed by people simply as, and because they are human beings. The
term has only come into common currency during the 20th century. Rights are not the same thing
as standards of behavior punishable or required by rules, which can be fundamentally unfair to
individuals, or used to oppress minority interests. Human rights are rights and freedoms which
all humans are entitled. Proponents of the concept usually assert that everyone is endowed with
certain entitlements merely by reason of being human. Human rights are thus conceived in
a universalist and egalitarian fashion.17 However, there is no consensus as to the precise nature of
what in particular should or should not be regarded as a human right in any of the preceding senses,
and the abstract concept of human rights has been a subject of intense philosophical debate and
criticism.

Natural law has objective, external existence.18 It follows from the ESS (evolutionary stable
strategy) for the use of force that is natural for humans and similar animals. The ability to make
moral judgments, the capacity to know good and evil, has immediate evolutionary benefits. It
evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability
to throw rocks accurately.19 Donald looks at the meaning of natural law from four perspectives.

17. 13Rhona K.M. Smith, Textbook on International Human Rights, 2004, Oxford University Press, 2 nd Ed.
18. Freeman, Introduction to Jurisprudence, (2008) Sweet & Maxwell, 8th Ed
19. W.Friedman, Legal Theory, 2008,Universal Law Publishing Co. 5th Ed

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The medieval/legal definition: Natural law cannot be defined in the way that positive law is
defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best
defined by pointing at particular examples, as a biologist defines a species by pointing at a
particular animal, a type specimen preserved in formalin. The historical state of nature definition:
Natural law is that law which corresponds to a spontaneous order in the absence of a state and
which is enforced, in the absence of better methods, by individual unorganized violence, in
particular the law that historically existed, in so far as any law existed, during the dark ages among
the mingled barbarians that overran the Roman Empire. The medieval / philosophical definition:
Natural law is that law, which it is proper to uphold by unorganized individual violence, whether
a state is present or absent, and for which, in the absence of orderly society, it is proper to punish
violators by unorganized individual violence. The scientific/ socio-biological/ game theoretic/
evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct
which violates natural law is conduct such that, if a man were to use individual unorganized
violence to prevent such conduct, or, in the absence of orderly society, use individual unorganized
violence to punish such conduct, then such violence would not indicate that the person using such
violence, is a danger to a reasonable man.

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Chapter 3:Human rights and legal theories.

The origins of international human rights lie in philosophical discussions evolved through the
centuries.

The theories of both Locke and Rousseau suffer from their failure to explain how the supreme
right of the majority can go together with the inalienable rights of the individual. Historically, the
assertion of natural rights has often been linked with a revolt against state, authority and a
humanitarian belief in the equality and dignity of all men. This is true of the legal philosophy of
Stoics or of Kant. (The idea of equality of men often causes democrats to be internationalists.)

The history of natural law is a tale of the search of mankind for absolute justice and of its failure.
Again and again, in its course of the last 2500 years, the idea of natural law has appeared, in some
form of the other, as an expression of the search for an ideal higher than positive law after having
been rejected and derided in the interval. With changing social and political conditions the notions
about natural law have changed. The only thing that has remained constant is the appeal to
something higher than positive law. The object of that appeal has been as often the justification of
existing authority as a revolt against it.14

Natural law has fulfilled many functions.20 It has been the principle instrument in the
transformation of the old civil law of the Romans into a broad and cosmopolitan system; it has
been a weapon used by both sides in the fight between the medieval church and the German
emperors; in its name the validity of international law has been asserted, and the appeal for freedom
of the individual against absolutism launched. Again it was by appeal to principles of natural law
that American judges, professing to interpret the constitution, resisted the attempt of state
legislation to modify and restrict the unfettered economic freedom of the individual.

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20. Romuald R Haule, Some Reflections on the Foundations of Human Rights, Max Planck UNYN, 10
(2006).

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Natural law has, at different times, been used to support almost any ideology; but the most
important and lasting theories of natural law have undoubtedly been inspired by the two ideas, of
a universal order governing all men, and the inalienable rights of the individual.

Greeks

Greeks were more interested in the philosophical foundations of law rather than its technical
development. Though there were bodies of fundamental laws in the classical period, little attention
was paid to the idea of universal law. Plato laid the foundations for much of subsequent speculation
on natural law though he had nothing to say as such on natural law. His republic was based on
substitution for law of the philosopher-king which partook of the divine wisdom but remained
incommunicable to lesser mortals.15 Aristotle was also not interested in natural law. Natural law
as a universal system in Greek World came into the fore with the decline of the city state and the
rise of large empires and kingdoms. For this stoic philosophers were responsible. They stressed
the ideas of individual worth, moral duty and universal brotherhood Stoicism passed over and
influenced over to and influenced Roman thought especially Cicero who defined natural (true) law
as “right reason in agreement with nature”.

Medieval Period

The existence of a body of basic rights can be traced back to the early thirteenth century in Europe
and has featured predominantly in different schools of thought since then. Its origins basically lie
in the philosophical discourse with concepts such as liberty and even “rights”.

This was a period when theology of the Catholic Church set the tone and pattern of all speculative
thought. The theology was bedevilled by the notion that law and human domination were rooted
in sin until Aquinas in the 13thCentury. Aquinas admits that human law, which derives its validity
from natural law changes with human circumstances and human reason.

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21. Peter Kirchschlaeger, Universality of Human Rights.

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Human rights are linked to the rule of law, a concept that imposes inherent limitations on the
exercise of absolute power by a sovereign. The rule of law in turn links to the theories of natural
law and to an extent religious doctrines.

The right to expect rulers to be fair and reasonable, with limited authority in respect to the private
lives and of their subjects, translating to the rule of law was first enshrined in paper in England in
what is referred to as the Magna Carta of 1215. It enshrined a number of principles which now fall
within the broad ambit of human rights, including the principle of equality before the law, a right
to property and an element of religious freedom, albeit such rights extended only to nobles.

The Declaration of Arbroath in Scotland in 132o, unlike the Magna Carta spoke of the profound
right to liberty, rating it above glory, honour, and riches.

Renaissance, Reformation and Counter-Reformation

The renaissance led to an emphasis on the individual and free will and human liberty and a
rejection of the universal collective society of medieval Europe in favour of independent national
states, and, where the reformation followed, separate national churches. The 16thcentury also saw
the revival of Thomism, a revival of crucial importance for the development of modern natural
law theory of the state led by Victoria and Suarez. They took their way of thinking from Aquinas;
it was not possible to neglect the law of nature since all men from beginning of creation have been
subject to it.

The social contract ideologies associated with Hobbes, Locke, and Rousseau are also traced to the
16th century.

Secularization of Natural Law

The secularization of natural law is usually held to begin with Grotius. He inaugurated a new era
in natural law thinking by his assertion that natural law would subsist even if God did not exist.
His main concern was to establish a system of international law to regulate the affairs and warfare
of the rising nation states.

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The 1688 Bill of Rights of England and Wales

In 1688, the Bill of Rights of England and Wales mentioned minimal rights though with little
substance. Whatever the case, these early documents connect as to the evolution of human rights.
They show that the thinking of the masses then was directed towards human rights as much as ours
is today.

The 18th & 19th Centuries: Revolutions and Rights

Though Vico, Herder and Montesquieu, refuted the idea of a universal natural law common to all
mankind due to increase in secularism and rationalism, it is during these two centuries that many
philosophers and thinkers focused on the idea of natural rights, rights which should be enjoyed by
all humans. A corpus of basic rights to be afforded to all mankind was an obvious result of such
thinking. That corpus found legal expression at the close of the 18th Century. The United States
and France adopted statements on rights when proclaiming the independence of the former British
North American colonies and when establishing the first French Republic following the 1789
revolution.

The United States Declaration of Independence and Bill of Rights, the first ten amendments which
were ratified on December 1791, were a big leap into realization of human rights. The American
Bill of Rights refers to freedom of religion, due process and fair trial, and freedom of person and
property.

The French Declaration was inspired by the United States Declaration of Independence, though
predates the Bill of Rights. It begins by stating that me nare born free and are equal in rights.
Liberty is defined as being able to do anything that does not harm others. It also touches on rule
of law issues such as a fair trial process. Others to be expounded are right to free communication
and taxation issues.

The rights enumerated by the American Bill of Rights and the French Declaration have modern
equivalents in human rights instruments. This was another major step in conversion of human
rights from theories and thoughts into real legal instruments that could be enforced and followed.

It is arguable that 18th century developments as pertains development of human rights were better
those of the 19thcentury where the influential theory of positivism meant that only states had rights

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in the international arena because of their legal status as subjects of international law rather than
individuals who were viewed as objects of international law.

Chapter 4: challenges of universality of human rights

How can different countries and cultures have the same problems and values? This is the main
contention to opponents of universality of human rights.
The objections to natural law as a basis for rights are long-standing. It is not difficult, of course, to
demonstrate that all human beings share certain characteristics. But finding those that constitute
the “essence” of being human and are of sufficient import to serve as a rationale for rights is a bit
harder.

Universality is one of the key essentials of human rights. All human beings are holders of human
rights, independent from what they do, where they come from, where they live and from their inter
alia, national citizenship, and their community. The universality of human rights is embedded in
and also influenced by the other characteristics of human rights: human rights are categorical,
egalitarian, individual, fundamental and indivisible.

Kirchschlaeger, asserts that human rights struggle with particular interests. States claim the priority
of their sovereignty over the universality of human rights and the private sector claims self-
regulating approaches and uses this to define its sphere of influence within certain limits. This
challenge is part of the political and legal dimension of human rights and as a consequence of the
moral dimension of human rights as well. In this regard, one can recognize a positive tendency of
acceptance of human rights by states, a growth of an international institutionalization for the
protection of human rights and a progress of the mechanisms for monitoring human rights
performances by states to respect the universality of human rights and some small steps by the
corporate world. At the same time, it has to be stated that the implementation of human rights is
not yet there where it should be, and that the vast majority of human beings are still victims of
violations of their human rights. The universality is still a claim, not reality.

Human rights are challenged by cultural diversity as well. This challenge is taking place in the
moral dimension of human rights. Although the UN Conference in Vienna 1993 reconfirmed the

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validity of the universality of human rights, the universality faced critics from different quarters
because of its alleged western origin.

Countries like China, Venezuela and those in the Arab world human rights as too westernized.
Currently, an ongoing case against some Kenyan politicians at the International Criminal Court
has added to the rant. In seeking a referral of the case by the Security Council, Kenya has the
Support of China, Russia and the African countries but the US, UK and France who wield veto
powers do not support the bid. This has been seen as a western effort to intrude into Kenyan
sovereignty using human rights as a disguise.16

Religions, cultures, traditions, world views and beliefs benefit indirectly from the human right to
freedom of religions and belief. This right enables and enhances the authentic practice of an
individual and so the peaceful coexistence of religions, cultures, traditions and world views and
the dialogue between them. It is an achievement of humanity to protect this variety. A show of
universality of human rights was when the UN Security Council, announced a no flying zone in
Libya and with the support of the Arab League, France, US and the UK moved to avert deaths of
Libyan civilians by bombing strategic points to immobilize Gaddafi troops.

Nickel, observes that the achievements of the human rights movement in have shown both that the
optimistic beliefs of proponents of universality were not entirely without foundation and how
difficult it is to create genuine international agreement about how governments should behave.
Globalization promotes joint ventures between people from different and sharing of ideas or views,
thus promoting the development of shared standards.

Toespraak views the criticism of universality with skeptism. He argues that although sometimes
the concerns are sincere, sometimes they are simply being abused to hide domestic shortcomings
or they serve opportunistic political agendas. Recent initiatives at the UN, both in the General
Assembly and in the Human Rights Council, such as the Russian initiative to promote the concept
of traditional values, the Cuban initiative on cultural diversity, and the Pakistani proposals on
interreligious dialogue, are slow but in his view sure attempts to weaken the fundaments of
universal rights. Some states have argued for a classification based on differences in culture,

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22. The Origin of Human Rights and the Challenge of Universality, excerpted from the book, Tainted Legacy 9/11
and the Ruin of Human Rights by William Schulz Thunder’s Mouth Press, 2003.

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religion and development In the Universal Periodic Review process. This is all reason for growing
concern according to him

Period after World War II and Development of human rights.

World War II gave impetus to the modern development of basic principles of human rights and to
the general acceptance of the idea that the human rights practices of individual countries toward
their own citizens are legitimate matters of international concern. The 1945 United Nations Charter
included a general commitment to respect for human rights, but it was the Universal Declaration
of Human Rights, 1948 that provided the basic statement of what have become widely accepted
international human rights standards.

After World War II, the term human rights came into wide use replacing the earlier phrase “natural
rights,” which had been associated with the Greco-Roman concept of natural law since the end of
the Middle Ages. As understood today, human rights refer to a wide variety of values and
capabilities reflecting the diversity of human circumstances and history. They are conceived of as
universal, applying to all human beings everywhere, and as fundamental, referring to essential or
basic human needs.

Modern international conceptions of human rights can be traced to the aftermath of World War II
and the foundation of the United Nations. The rights espoused in the UN charter would be codified
in the International Bill of Human Rights, composing the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights. 17

The Universal Declaration was bifurcated into treaties, a Covenant on Civil and Political Rights
and another on social, economic, and cultural rights, due to questions about the relevance and

17
23. Toespraak, On the Universality of Human Rights in a Changing World, sourced
from http://www.rijksoverheid.nl/documenten-en-publicaties/toespraken/2010/05/03/on-the-
universality-of-human-rights-in-a-changing-world.html.

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propriety of economic and social provisions in covenants on human rights. The covenants provide
for the right to self-determination and to sovereignty over natural resources.

The drafters of the Covenants initially intended only one instrument. The original drafts included
only political and civil rights, but economic and social rights were also proposed. The
disagreement over which rights were basic human rights resulted in there being two covenants.
The debate was whether economic and social rights are aspirational, as contrasted with basic
human rights which all people possess purely by being human, because economic and social rights
depend on wealth and the availability of resources. In addition, which social and economic rights
should be recognised depends on ideology or economic theories, in contrast to basic human rights,
which are defined purely by the nature (mental and physical abilities) of human beings. It was
debated whether economic rights were appropriate subjects for binding obligations and whether
the lack of consensus over such rights would dilute the strength of political-civil

rights. There was wide agreement and clear recognition that the means required to enforce or
induce compliance with socio-economic undertakings were different from the means required for
civil-political rights.

From what I have discussed above, we can say that human rights have been classified historically
in terms of the notion of three “generations” of human rights. The first generation of civil and
political rights, associated with the Enlightnment and the English, American, and French
revolutions, includes the rights to life and liberty and the rights to freedom of speech and worship.
The second generation of economic, social, and cultural rights, associated with revolts against the
predations of unregulated capitalism from the mid-19th century, includes the right to work and the
right to an education. Finally, the third generation of solidarity rights, associated with the political
and economic aspirations of developing and newly decolonized countries after World War II,
includes the collective rights to political self-determination and economic development.

Since then numerous other treaties have been offered at the international level. They are generally
known as human rights instruments. Some of the most significant are:

 Convention on the Elimination of All Forms of Racial Discrimination.

 Convention on the Elimination of All Forms of Discrimination Against Women.

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 United Nations Convention Against Torture.

 Convention on the Rights of the Child.

 International Convention on the Protection of the Rights of All Migrant Workers and Members
of their Families.

 There are also regional human rights instruments such as the African Charter on Human and
Peoples’ Rights , the American Convention on Human and Peoples’ Rights’ Rights, the American
Convention on Human Rights and the European Convention on Human Rights. Human rights
principles, policy, and practices became an increased focus of popular and public attention during
the last quarter of the twentieth century. Several influential nongovernmental organizations were
formed during this period to monitor and report on human rights matters.

In the late 20th century ad hoc international criminal tribunals were convened to prosecute serious
human rights violations and other crimes in the former Yugoslavia and Rwanda. The International
Criminal Court, which came into existence in 2002, is empowered to prosecute crimes against
humanity, crimes of genocide and war crimes.

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Conclusion

From the foregoing, it can be concluded that, Human laws are subordinate to natural law; some
need more guidance to achieve a virtuous life than others; these people can only be compelled to
behave well through human law; reason can be good, but it may be used to exploit base desires
and cruelty – linking human law to natural law and natural law is used as a set of general first
principles under which human law is made using reason. Using natural reason leads to creation of
good human law to deal with the needs of practical situations not expressly covered by natural
law.

Human rights have come a long way to not only receive recognition by individual states, but also
at the international arena .Universal validity of human rights norms under the current state of
international law, does not permit a denial of the universal character of the human rights laws.
When implementing human rights, within the context of the principle of universality, there is room
for interpretation. The international community should define the scope or variations. Supervision
of the implementation of human rights should be conducted by impartial, independent international
bodies and not by individual states, as each state has its own particular views on fundamental rights
and freedoms which are shaped by different historical developments.

Another major development in the field of human rights is the general acceptance of the principle
that human rights are no longer an exclusive domestic affair of states but a legitimate concern of
the international community. This principle also reinforces the principle of universality. It is
incorporated in the Declaration of the Vienna Conference which was adopted by consensus.

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With the 21st century bringing in more in the spheres of technological developments and unified
world, we can only wait and see to what level human rights can be pushed.

As Haule puts it, although human rights have their origin from natural law, it took a system of
positive law to provide a definite and systematic statement of the actual rights which people
possessed.

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BIBLIOGRAPHY

 Romuald R Haule, Some Reflections on the Foundations of Human Rights, Max Planck
UNYN, 10 (2006).

 Peter Kirchschlaeger, Universality of Human Rights.


 James Nickel, Human Rights and Globalisation,
 The Origin of Human Rights and the Challenge of Universality, excerpted from the
book, Tainted Legacy 9/11 and the Ruin of Human Rights by William Schulz Thunder’s Mouth
Press, 2003,

 Australian Human Rights Commission, Human Rights Theories, Edward Cullen.

 Rhona K.M. Smith, Textbook on International Human Rights, 2004, Oxford University Press,
2nd Ed.
 W.Friedman, Legal Theory, 2008,Universal Law Publishing Co. 5th Ed.
 Freeman, Introduction to Jurisprudence, (2008) Sweet & Maxwell, 8th Ed.
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 Hegarty & Leonard, Human Rights, An Agenda for the 21st Century, (1999)
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 History of Universal Human Rights – Up to WW2 Article by Moira Rayner,
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 Himma, K E (1 March 2007) Just' Cause You're Smarter than Me Doesn't Give You a Right to
Tell Me What to Do: Legitimate Authority and the Normal Justification Thesis, Oxford Journal
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 Himma, K E (1 September 2003) Trouble in Law's Empire: Rethinking Dworkin's Third
Theory of Law Oxford Journal of Legal Studies OJLS 2003 23 (345).

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