Human Rights and Civil Liberties

I

Introduction

Human Rights and Civil Liberties, the liberty and justice that a citizen or person expects, or is entitled to expect, in the content and operation of the law. The terms are not defined in law: they overlap and are often used to mean the same thing. Rights may be regarded as positive, as they confer the freedom to do something, whereas liberties are negative in that they place limits on the state’s power to control the individual. Examples of civil liberties include the prohibition of torture, while perhaps the most basic of commonly recognized rights is the right to life.

Who possesses rights and liberties is controversial, and is as much a philosophical question as a legal one. However, it is generally accepted that the state is obliged to protect and observe the basic rights and liberties of all persons, whether they are citizens of that nation or foreign nationals. Nations are constantly seeking a balance between the freedoms of the individual, and the interests of those adversely affected by the exercise of that freedom, whether the state, individuals, or animals.

II

History

The concept of inalienable rights and liberties was first articulated by the ancient Greek philosophers. Socrates was found guilty of corrupting the youth of Athens through speaking his mind. He refused to renounce this exercise of freedom of speech and was condemned to death. Aristotle, in his Nicomachean Ethics, presupposed elements of what are now basic rights. This was also the case in parts of the Bible, as well as in the philosophical writings of the Roman lawyer and statesman Cicero and the Greek biographer Plutarch. The Stoic philosophers later formulated an explicit doctrine of the rights of the individual. Conversely, the autocratic and at times brutal nature of the Roman Empire did not provide a fertile ground for these concepts. Similarly, during the medieval period, the hierarchical feudal societies did not entertain such concepts. However, the theories of St Thomas Aquinas, in his attempt to reconcile Christian doctrine with the pre-Christian learning, demand the acknowledgement of some basic rights, and he formulated what was perhaps the first justification for civil disobedience, that is, breaking the law to highlight its injustice.

III

Early Development

The feudal system’s refusal to acknowledge a source of authority beyond the commands of superiors meant that civil rights had no meaning; individual freedom can only survive if appeal can be made to a legal system that binds both the ruler and the ruled. This limitation on government received its first operative expression in Magna Carta of 1215 (see below), which set limits on the power of King John. Magna Carta was not born of democratic or egalitarian beliefs, or from any abstract concept of human rights; it was a treaty, almost a contract, between the king and the most powerful nobles. It defined the relationship between them and established a legal order to which the king was subject. In its terms it would appear to be universal, but it is doubtful whether it was of much benefit to the ordinary people, who were often subject to the arbitrary command of the very nobles who had forced the charter on the king. Even in the more exalted levels of society, the idea of rule by a king’s divine right, above human law, persisted, and led to fierce struggles between Crown and Parliament during the Tudor and Stuart dynasties.

On the European continent, the struggle between authoritarianism and liberty developed more around religious issues. During the Reformation, freedom of religious belief and practice was a primary concern. Tolerance was rare: as late as 1612 members of the Unitarian sect were burned in England for their heresy. The Inquisition in Spain has become a byword for savage intolerance. Only by the end of the 18th century was the ideal of religious toleration firmly established in Western civilization.

As a result of the English, American, and French revolutions, libertarian ideals were embodied to a greater or lesser extent in the structure of government. In England the struggle between Parliament (not a democratic institution in the modern sense) and the Stuart monarchy saw an inconclusive deposition and restoration of the monarchy, and finally the successful Glorious Revolution of 1688 (so called because it was carried out without bloodshed in England). The last Stuart king, James II, was expelled, having tried to resurrect the monarch’s absolute power in his religious dissent from the national Church. He was replaced by William and Mary, who assented to the Bill of Rights of the same year. This guaranteed constitutional government and led, eventually, to the present-day doctrine of the absolute supremacy of Parliament (although this has recently been under pressure from developments in the legislative powers of the European Union), as the monarch’s powers were gradually limited by statute and custom. The system of constitutional monarchy was articulated by the contemporary English philosopher John Locke, and his writings profoundly influenced the leaders of the American colonies and other libertarians over the following century.

The 17th and 18th centuries also witnessed the growth of freedom of the individual in England. In the common law courts, in particular, judges became more concerned for the rights of those accused of crime, and procedural fairness became a priority in criminal and civil law.

IV

The Spread of Civil Liberties

British colonists took the concepts of limited government and individual freedom to the New World: the first colonists were refugees from religious persecution. The early laws of the first states reflected interest in the reform of criminal procedure developing in England. The American and subsequently the French revolutions both inspired and were inspired by writings that laid the foundations of modern ideas of civil liberties. Notable authors of the time were the French philosophers Voltaire and Jean-Jacques Rousseau, the British reformer John Wilkes and philosopher Jeremy Bentham, the Anglo-American writer Thomas Paine, and the American statesman Thomas Jefferson. The Declaration of the Rights of Man and of the Citizen in France and the Bill of Rights in the United States Constitution formally set out libertarian principles that are central to modern democracy.

Although civil liberties are now considered an integral part of democratic government, it would be a mistake to see this period as a democratic one in a modern sense. These principles were developed when political power in England was in the hands of an aristocratic upper class and of a mercantile class almost as small. Many of the American founding fathers did not favour democracy in the modern sense. Conversely, democracy as a means of determining the composition of government has historically been no guarantee of civil liberties: enforcement of the law may be arbitrary or despotic, and minorities may have no effective safeguards against tyranny.