Definition, Sources and 4 Classification of Rights
The term “right’ is complex. Holmes S. says that a ‘Right’ is “one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified”: American Bank of Trust Co. V. Federal Reserve Bank of Atlanta (1921). The complexity is worse compounded by the general legal and political order.
Right is a correlative to duty; where there is no duty, there can be no right. But the converse is not necessarily true. There may be duties without rights.
In order for a duty to create a right, it must be a duty to act or forbear and that act or forbearance must be external. It is only to acts and forbearance that others have a right. As this discourse progresses, you should, at every stage, stop and reflect on the issue: whether or not, the right in question creates a correlative duty in the state –to act or forbear – some kind of external acts or forbearance.
After completing this article, you should be able to explain the term “Right” in relation to UDHR and ECOSOC Rights, identify Political and Civil Rights, distinguish Economic, Social and Cultural Rights and discuss the contents of the Constitutional Provisions for Rights to accommodation, food, education and equality of opportunity and take a position in defense or otherwise of the policy of non-justifiability of the rights to accommodation, food, education and equal opportunities.
Definition of Rights
Rights and Law are sometimes used interchangeably as though they mean the same thing. For example, Jus (Latin) and Recht (German) may mean ‘right’, ‘a right’ or ‘law’.
A right may be legal or moral. Holland says “Moral Right” means: ‘one man’s capacity of influencing the acts of another by means, not of his own strength, but of the opinion or the force of the society’. The sanction for a violation of a moral right lies in public opinion.
Legal Rights are;
– Legally protected interests (Von Ihering)
– Anything you can bring before court and base a claim upon (Earle Richards)
– When another or others are bound or obliged by the law to do or forbear towards or in regard to another (Austin)
Sources of Rights
The Fundamental Human Rights may derive from the following sources;
(a) NATURAL LAW
Certain Rights exist as a result of higher law than positive law; such higher law constitutes a universal and absolute set of principles governing all human beings in time and space.
(b) SOCIAL CONTRACT THEORY
John Locke argued that the subject people conceded power of government only on trust and any infringement by the rulers of individual fundamental natural rights automatically put an end to the trust and entitled the people to resume their authority. In this view, the fundamental human rights are inalienable.
(c) Rousseau allied with John Locke and both impacted considerably on the leaders of the French Revolution as well as the Constitution of the United States of America.
(d) The Magna Carta, the Bill of Rights, the Renaissance and the Reformation in turn influenced the human rights development.
For example, the Renaissance broke down the medieval order and subscribed to the idea:
(1) That man possessed certain fundamental rights and
(2) When the civil society came into being through social contract, man retained those rights in his new civil status protected in his enjoyment of them by natural law.
(e) The Positivists have little sympathy for rights other than the specific rights emanating from the Constitutional Structures of the legal system.
Similarly, the Marxists, in their belief in the existence of certain immutable historical laws governing the development of the state, have denied the existence of rights outside the framework of the legal order.
The Marxists regard the state as the highest synthesis attainable and the individual is no value by himself. Rather he is absorbed in the family and the family in the state; the real substance of which individuals are accident.
(f) The United Nations Declaration of Human Rights (UNDHR).
The United Nations recognized that every human being has a minimum core of rights, which no state authority can take away. These rights became known as Civil and Political Rights and they covered a wide range of rights.
Among such rights are:
– Right to life
– Freedom from torture and inhuman treatment
– Right to liberty
– Freedom from slavery and forced labour
– Freedom of movement
– Right to fair trial
– Freedom of thought, conscience and Religions
– Rights to Property
– Right to vote and be voted for.
The Commission on Human Rights excised Economic, Social and Cultural Rights in the process of formulating the International Covenant on Human Rights.
The reasons were that:
– The civil liberties lend themselves readily to judicial processes; socio-economic and cultural rights do not.
– Social and economic rights entail the development of practical institutions to enforce and implement.
– Social and economic rights require the making of appropriations to implement the kind of policy involved.
(g) Economic, Social and Cultural Rights (ECOSOC Rights) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The human rights, which the Human Rights Commission could not accommodated in the International Covenant on Human Rights were relegated to the category of Economic, Social and Cultural Right (ECOSOC Rights) and were constituted, for purpose of implementation in the International Covenant on Economic, Social and Cultural Rights.(ICESCR)
The rights pertained to the necessaries of life, and material well-being, and egalitarian ideals.
Examples are;
– Right to work and to just conditions of work
– Right to fair remuneration
– Right to adequate standard of living
– Right to organize, form, and join trade union.
– Right to equal pay for equal work
– Right to social security (food, education etc.)
– Right to participate in one’s community’s cultural life.
(h) African Charter
The position of the African Charter is that all rights are equal the charter accordingly merged the Civil and Political Rights and the Economic, Social and Cultural Rights. Specifically the African Charter provided for:
– Right to work under equitable satisfying conditions (Act 15)
– Right to the best attainable state of health (Act 16)
– Right to every individual to Education (Act 17)
– Right to economic, social and cultural development (Act 22)
(i) The Constitution
Prior to the advent of colonialism in 1861, man was part of the family unit which bore the responsibility for the essentials of life for its members.
From 1861 – 1922, there was no constitution. There were written Constitutions from 1922 – 1959; but there were no provisions for fundamental human rights.
Colonialism is a denial of right of self-determination and itself was antithesis of human rights and freedoms.
Human Rights became an issue as independence. Chapter IV of the Independence Constitution, 1960, contained the Civil and Political Rights. All subsequent Constitutions made identical provisions.
The Federal Republic of Nigeria Constitutions 1979 and 1999 provided for Civil and Political rights; namely;
– Right to life
– Right to dignity of human person
– Right to personal liberty
– Right to fair hearing
– Right to private and family life
– Right to freedom of thought, conscience and religion
– Right to freedom of expression and the press
– Right to peaceful assembly and association
– Right to movement
– Right to freedom from discrimination
– Right to acquire and own immovable property anywhere in Nigeria
Both Constitutions also provided for Economic, Social and Cultural Rights in chapter II, captioned ‘Fundamental Objectives and Directive Principles of State Policy”.
These Rights are modeled into;
i. Political Objectives (Sec 15)
ii. Economic Objectives (Sec 16)
iii. Social Objectives (Sec 17)
iv. Educational Objectives (Sec 18)
v. Environmental Objectives (Sec 20)
vi. Directives on Nigerian Cultures (Sec 21)
vii. Obligations of the Mass Media (Sec 22).
The Nigeria approach is to maintain a duality of treatment of;
a. Civil and Political Rights (Chapter IV)
b. Economic, Social and Cultural Rights (Chap II)
The formulation of Chapters II and IV of the Constitution is suggestive that one set of fundamental human rights is superior and worthy of enforcement over and above another. It is probably a reflection of the confusion as to what constitutes human rights and how they should be enforced.
Justice Bhagwati of the Indian Supreme Court noted that the conferment of an aura of sanctity and inviolability on such formal rights as are designated Fundamental Rights and relegating the Directive Principles to insignificance creates a situation where manifest public good and substance is sacrificed to private interests and obeisance to empty form. (Minerva Mills Ltd V. Union of India (1980)).
All the rights are interwoven. The Civil and Political Rights themselves entail certain minimum of social amenities – minimum basic requirement for human existence e.g. Food, clothing, housing, education, medical and sanitary services and employment.
To the ordinary man, conception of government is largely in terms of its ability to provide these basic needs.
The idea of free human being, enjoying freedom from fear and want can only be achieved if conditions are created whereby anyone may enjoy his economic, social and cultural rights as well as his civil and political. The frustration generated by poverty, ignorance and disease tend to alienate the citizenry and nullify civil and political rights.
The enforcement and protection of civil and political rights therefore is a mirage where poverty, stagnation, marginalization and under- development prevail.
(j) Rule of Law
The International Congress of Jurists Delhi, 1959 and Lagos 1961 redefined and expanded the Rule of Law beyond the Civil and Political Rights for the third world and then Africa.
The Jurists acknowledged that the rule of law is a dynamic concept and charged the Jurists to use it to establish social, economic, educational and cultural conditions under which man’s legitimate aspirations and dignity may be realized.
4 Classification of Rights
The law has not classified Rights. History, policy and writers have divided them as follows:
1. (a) Civil and Political Rights
(b) Economic, Social and Cultural Rights.
2. (a) First Generation Rights
(b) Second Generation Rights
(c) Third Generation Rights
(d) Fourth Generation Rights
(e) Fifth Generation rights
3. (a) Justiciable Rights
(b) Non Justiciable Rights
4. (a) Legal Rights
(b) Moral Rights
The Civil and Political Rights are the same as First Generation Rights, Justiciable rights, or legal rights.
In the same way, the Economic, Social and Cultural Rights as well as second, third, fourth and fifth generations rights, non-justiciable or moral Rights mean the same thing.
Conclusion on Definition, Sources and 4 Classification of Rights
The term ‘right’ is complex; and hierarchical. Civil and political rights are immediately enforceable binding commitments. Economic, Social and Cultural rights are a beacon light for possible future patterns of behaviour and are closely allied with ethics and morality.
Rights to accommodation, food, clothing. Education and equal opportunities are economic and socio-cultural rights and have been expressed in Chapter II of the Constitution, while the civil and political rights are contained in Chap IV. The separation has some significant implication.
This is the first part of our discourse on human rights to accommodation, food, education and equal opportunities. We explained what ‘Right’ means, the different sources of human rights and classification. You will appreciate that the initial intendment of the UN Commission on Human Rights and of African Charter is to treat all rights as equal.
By reason of practicability, enforcement or implementation and divergent views of the bounds and compasses of “rights”, some jurisdictions including Nigeria have separated ECOSOC Rights from Civil and Political Rights.
In the next article, some specific ECOSOC Rights will be examined in greater details.
