Human Rights in Pre-Modern Times

“Human” means “relating to human beings”, relating to members of the races of homo sapiens – men women, children.

‘Right’ refers to that which is just or correct, truth, fairness, justice, just or legal claim.

‘Human Rights’ mean the freedoms, immunities and benefits that according to modern values, all human beings should be able to claim as a matter of right in the society in which they live.

In this article, you should be able to define or explain the term “Human Rights”, differentiate the nature and scope of human rights on the basis of ideology, explain whether or not human rights are time and culture specific or universal and give a historical account of the evolution of human rights from pre-modern age.

Classes of Human Rights

There are different categories of rights which pertain to human beings. Some are immediately enforceable binding commitments. These latter rights are reflective of the values of the community.

Others are regarded as merely specifying possible future patterns of behaviors. These rights savor of ethics and morality. Entitlement to them can only arise under specific conditions.

Thus enforcement and sanction determine the characterization of any particular human rights

Ideology and Moral Rights

Adherents of the natural law principles have said that certain rights exist as a higher law than the legal system or any positive law. Such rights are universal and absolute, irrespective of space and time.

For example, the social contract theory postulates the existence of inalienable right to life, liberty and property, which serves as a powerful restraint on arbitrariness.

The United States Declaration of Independence (1776) was a restatement of the Natural Law postulate.

Marxists have little place for human rights within the framework of the legal order. Tunkin emphasized: “conventions on human rights do not grant rights directly to individuals” the contents of human rights obligations are defined solely by the state in the light of the socio- economic advancement of the state.

Human rights means no more than that

(a)  All states have a duty to respect the fundamental rights and freedoms of all persons within their territories.

(b) States have s duty not to permit discrimination by reason of sex, ethnicity, religion or language

(c) States have a duty to promote universal respect for human rights and to cooperate with each other to achieve this objective.

Positive rights are contained the Legal System. It is discoverable from the system with or without moral or ethical consideration.

Positivism has little place for human rights beyond these rights that are enshrined in the legal system. This is consistent with its doctrines of state sovereignty and supremacy of national jurisdiction.

Following important development in the 20th century, as you will see later, some basic civil and political rights became universal constraints of powers of governments.

Such rights acquired recognition, meaning and effect irrespective of space and time.

But note the following observations:

1. Economic rights were only desired.

2. Colonized peoples were hardly heard, and were denied of human rights especially right to freedom.

3 Economic inequalities of states was a non-issue.

Certain issues also arose e.g.

– Whether the concept of human rights differ in different culture.

– Whether human right are granted to all individuals, regardless of culture and by reason only of their membership of human race.

Perhaps it is human right, what the international community accepts as human rights.

Human Rights: Historical Perspectives

The global concept of Human Rights transcends any known period in history. History itself is full of event and struggle for rights by people all over the world at all times.

The fight for the protection of Human rights still continues, and the main organization in the forefront is the United Nations Organization and lately the African Union.

From Biblical history, we see that the ancient Israelites made efforts, at one time in Egypt, at another time in Babylon, to free themselves from slavery and bondage. Essentially, the concept is an evolution of revolt against authoritarianism, tyranny, slavery, discrimination and all other ways by which rights, which are innate to all human beings have been suppressed.

Amongst the writers on Human Rights, the settled fact is that the human being, without any regard to time and space, is entitled to the exercise of some freedoms. These freedoms are not granted by any authority but they are paradoxically claimed and exercised by every human being as of right.

These include freedoms of worship, speech, association, opinion and of the pursuit of happiness and worthwhile vocations and professions.

The first use of the word with an equivalent meaning of freedom was in the 24th century B.C. in the Lagash province of Sameria. Then the king of Lagash, Urukagina, had to come to the aid of his citizens against the tax collectors and the high Priests. Urukagina had no other option but to chase the tax collectors and high Priests out of town in order to save his crown from protests from his subjects.

The Progenitor of Human Rights in Natural Law

This is the jurisprudential aspect of law that was developed by the ancient Roman and Greek Philosophers.

Much of the content of literature on Human Rights, as we have them today, however, is an improvement on Roman Law by the Hellenistic stoic philosophers.

At the time, Roman Law had what they called the Jus Gentium.

These were the laws and rules basically for all mankind.

During the tyrannical period, the question of the “Rights of Man” became a slogan in the struggle against the injustices and indignities committed by some governments. These “rights” were termed “natural rights” and they were claimed to derive from “natural law”, the law that ruled the universe.

The Stoic philosophers declared their unreserved conviction for a natural law which they said ruled over gods and men. Sophist’s heroine, Antigone declared that there were laws higher than the royal laws and the kings’ government.

Through these laws, she contended that she and every human being had certain rights which though could be violated by royal force yet they could never be cancelled or taken away.

The origin of natural law is ascribed to the old and indefensible movement for the progress and maintenance of eternal and immutable justice.

This justice, d’ Entreves said

…is conceived as being higher or ultimate law, proceeding from the nature of the universe from the being of god and reason of man.

d’Entreves added that. 

…Law in the sense of law of last resort is somehow above law making … Lawmakers, are under and subject to law.

He concluded by saying that:

…it was among the stoic philosophers of the Hellenistic age that the movement first attained a large and general expression and the expression became a tradition of human civility which runs continuously from the porch of the American Revolution of 1776 and the French Revolution of

1789….

Aligning with d’ Entreves, Bodin, the celebrated French Jurist held that though the acts of the sovereign were ultimate yet the sovereign was bound by the laws of God and nature.

The Stoic’s conception of natural law was strictly upheld by the Romans.

Cicero’s opinion was that natural law allows any part of it to be repealed entirely.

We cannot be freed from its obligations by senate or people “…And there will not be different laws at Rome and at Athens or different laws now and in the future but one eternal unchangeable law will be valid for all nations and for all time.”

Cicero’s immutable natural law gave birth to human rights which down the ages up to the present day have been the hall mark of constitutional provisions on fundamental human rights in different countries.

All nations have tried to standardize their provisions on Human Rights though not all of them practice them to the letter.

Human rights are natural rights which are conferred by natural law on every human beings and are: …not the particular privileges of citizens of certain states but something to which every human being, everywhere, was entitled by virtue of simple fact of being human or rational.

These natural rights are the special gifts to human beings by nature which are standard, immutable and universal. They are only comprehensible to human beings alone.

About this Gaius Ezejiofor noted that;

…men…could comprehend and obey this law of nature because of their possession of reason and capacity to develop and attain virtue. They were by this able to emphasize the notion of freedom and equality of all men.

The views of other writers are not different, most especially on its universality, immutability and uniqueness. 

In the words of Louis Henkin: Human rights are claims which every individual has, or should have…to call them human suggest that they are universal.

They are the due of every human being….They do not differ with geography, history or culture, or ideology, political, or economic stage of development.

Gaius Ezejiofor highlighted the existence of some specific fundamental human rights in some ancient Greek city states even before the advent of the much talked about stoic philosophers.

He mentions, for example, “Isogoria” being equal freedom of speech; ‘Isotimia”, being equal respect for all; “Isonomia” being equality before the law.

These are all rights existing in the Bill of Rights of all civilized nations today.

Conclusion on Human Rights in Pre-Modern Times

You have defined human rights. You can then visualize human rights form the perspective of persons claiming them and also from the perspective of those whose duty it is to protect them. You have also seen the approach of the exponents of the principles of natural law, positivism, Marxism as the developing sates. Human rights exist social as social facts.

In this post, you have learnt about what ‘human Rights’ is, what is or what is not human rights may all depend on acceptance by the International community.