Dr Syed Anwar Husain :
That human beings are to have rights has a philosophical as well as logical basis, which comes out clearly in the following words of J. Maritain
"The human person posses rights because of the very fact that it is a person, a whole, master of itself and of its acts, and which consequently is not merely a means to an end, but an end, an end which must be treated as such ... [and] the human person ... is the subject of rights, posses rights. These are things which are owed to man because of the very fact that he is man."1
A commonly held view is that both as a concept and construct Human Rights is entirely of modern origin and that too of Western one. But a holistic view would regard Human Rights as a phenomenon, which, despite its modern origin, has had gestation in the past spanning over ages.
McIntyre argues there is no word for 'right' in any document before 1400.2 Prior to this time all the historic documents were, although ethical in nature, presaged modern-day idea of Human Rights. The Cyrus Cylinder, created by the ancient Persian King Cyrus the Great (B. C. 600-529), is sometimes argued to be the world's first charter of Human Rights.3
The medieval origin of the concept of Human Rights may be traced to a number of documents, but the earlier ones of which related to life and works of the Prophet Muhammad (SAW). The first one was the Charter of Madina of 622. This charter ordained equality to all persons of the city irrespective of religion and protected them against oppression (Clause 16). The state proclaimed the brotherhood of believers and gave each one a right and support to give protection to any individual, excepting an enemy (Clause 15). In the context of Human Rights more pertinent was the clause 25, wherein religious freedom was guaranteed to each community; thereby religious pluralism, an essential ingredient of democratic ethos, was provided. Incidentally, it may be noted that the provision for the state religion of Islam is neither Islamic nor democratic.
The Charter of Privileges of 628 given to the monks of St. Catherine Monastery in Mount Sinai guaranteed five freedoms: of worship and movement; to appoint their own judge; to own and maintain property; of exemption from military service; and the right to protection in war.
The last document related to the Prophet (SAW) was contained in his Farewell Pilgrimage Oration of March 632. On Men-Women rights the Prophet (SAW) said, "O Men, to you a right belongs with respect to your women and to your women a right with respect to you." About a comprehensive perspective of Human Rights he had such eloquent words as -
"O People! Hurt no one so that no one may hurt you. All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab, also a white has no superiority over a black, nor a black has any superiority over a white except by piety and good action".4
Sometimes in the Western discourse on Human Rights the English document of Magna Carta of 1215 is referred to. Although a foundation for modern-day Human Rights the document was essentially a limited political and legal agreement to address specific political circumstances. Nevertheless, the document was an embryo of future civil and political rights in Britain and elsewhere across the world.
One of the significant medieval records of Human Rights is the Statute of Kalisz of 1264. Given by the Polish Kingdom to the Jewish minority the statute provided protection from discrimination and hate speech.5
The earliest premodern conceptualisation may be traced to the debates of Spanish clerics on the question of extending rights to indigenous peoples in the Americas. Las Casas argued in favour of equal rights to freedom from slavery for all humans regardless of race or religion.6
The modern origin of the concept of Human Rights may be traced to the 17th century English philosopher John Locke who identified some natural rights such as life, liberty and property. He argued that such fundamental rights could not be surrendered in the social contract. In 1689, the Bill of Rights and the Scottish Claim of Right each made illegal a range of tyrannical government actions. The two Western revolutions of the 18th century registered milestone progress towards conceptualising Human Rights. The American Revolution of 1776 started off with the 4 July Declaration of Independence wherein occured such egalitarian words as "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." It is evident that the spirit of this declaration was, to a great extent, influenced by Lockean philosophy and postulations. Additionally, the Virginia Declaration of Rights of 1776 encoded into law a number of fundamental civil rights and civil freedoms. Nevertheless, Abigail Adams, wife of John Adams, one of the authors of the constitution, faulted the constitution for skipping rights of women, the Red Indians and the Afro-Americans. In 1791, therefore, the first ten amendments to this constitution were lumped together as the Bill of Rights which ensured a wide range of fundamental rights. Yet it was not until the 1960s that the Afro-Americans would be entitled to civil rights.
The second 18th century revolution was the French Revolution of 1789, which was followed by the French Declaration of the Rights of Man and of the citizen in 1791 which articulated certain Human Rights. But alleging that this otherwise egalitarian declaration was gender biased Mary Wollstonecraft astounded the world with her feminist treatise Vindication of the Rights of Women (1792).
During later part of the 18th century and throughout the 19th century writings on Human Rights poured forth from such eminent philosophers as Thomas Paine, John Stuart Mill and G. W. F. Hegel. It is hypothesised that the term Human Rights came into use some time between Pain's The Rights of Man and William Lloyd Garrison's 1831 writings in The Liberator, in which he stated that he was trying to enlist his readers in "the great cause of human rights."7 Historically it may be suggested that the term had been used by at least one author as early as 1742.8
In the 19th century slavery became the central focus of Human Rights activists in the Western world. Both Britain and the United States took legal steps for banning slavery. Britain, for example, enacted the Slave Trade Act 1807 and the Slavery Abolition Act 1833. In the United States slavery was gradually abolished in the northern states between 1777 and 1804, although the southern states clung tightly to the instution. Subsequently, the amendments from the 13th through the 15th improved the Human Rights scenario in the United States. In 1861, the Russian Tsar Alexander II ended serfdom, but the freed serfs often faced restrictions of their mobility within the nation.
The establishment of the International Committee of the Red Cross, the 1864 Lieber Code and the first of the Geneva Conventions in 1864 laid the foundations of international humanitarian law, to be further developed following the world wars. Taking a strong cue from Mary Wollstonecraft's book the feminist movement got off the ground in the United States in 1848. The Declaration of Sentiments issued from the Seneca Falls Convention in New York demanded women's voting rights as Human Rights. By the late 19th century, the British women demanded the same right and spawned the strong Suffragette Movement. By the 1960s the term feminism got into currency to denote a movement across the world for endowing women with rights ensuring gender equality.
The huge loss of life and gross abuses of Human Rights that took place during World War I were a driving force behind the development of modern Human Rights instruments. Following the end to war the League of Nations was founded with the pious hope for a war-free peaceful future world. As is known, this first supranational body failed or was made to fail in its prime task and the Second World War burst upon in 1939. But enshrined in the Charter of the League was a mandate to promote many of the rights later included in the Universal Declaration of Human Rights.
At the Yalta Conference of 1945, the Allied Powers agreed to create a new body to supplant the League; this was to be the United Nations. The United Nations has played an important role in international Human Rights law since its creation. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly in 1948, partly in response to the atrocities of World War II. Based on centuries of thinking along both religious and secular lines the declaration is generally viewed as the preeminent statement of international rights. The declaration is the first international legal effort to limit the behaviour of states and press upon them duties to their citizens. Although the UDHR is a non-binding resolution, it is now considered by some to have acquired the force of international customary law which may be invoked in appropriate circumstances by national and other tribunals. The Preamble stresses "... recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world."
Following the end to the Cold War Human Rights organisations flourished across the world. Ludwig Hoffman argues that Human Rights became more widely emphasised in the latter half of the 20th century because it "provided a language for political claim making and counter-claims, liberal-democratic, but also socialist and post-colonialist."9
The most significant post-UDHR document was the Cairo Declaration of Human Rights (CDHR) signed by member states of the Organisation of Islamic Conference (OIC) in 1990 at the 19th Conference of Foreign Ministers held in Cairo. Patterned after the UDHR the object of the CDHR was to serve as a guide for member states on Human Rights issues. This declaration translated the Quranic teachings as follows: "All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrination on the basis of race, colour, language, belief, sex, religion, political affiliation, social status or other considerations. True religion is the guarantee for enhancing such dignity along the path to human integrity." On top of references to the Quran, the CDHR also referenced prophetic teachings and Islamic legal tradition.10
This cursory glance at the gradual evolution of the concept of Human Rights establishes the fact that the UDHR was the preeminent document of Human Rights summarizing secular and religious notions of rights that had evolved over the centuries. Eleanor Roosevelt, the chair of the Commission that produced the declaration, was quite smug when she said, "It is not a treaty [in the future it] may well become the international Magna Carta."11 Indeed, it is so.
Notes and References
1. J. Maritain, The Rights of Man and Natural Law (D. Anson translation, 1943), cited in Dr. Kazi Aktar Hamid, Human Rights, Self-Determination and the Right to Resistance: The Case Study of Hawaii (Washington, D. C.: Kyles Eapen, Alamgir and Associates, 1994), p. 25.
2. Danny Danziger and John Gillingham, "1215: The Year of Magna Carta" (Paper pack edition), p. 278.
4. See Syed Anwar Husain, "Islam in the Democratic Matrix", in Naveed Ahmed Tahir (ed.), Different Facets of the Islamic Ummah in a Globalised World (Karachi: Area Study Centre for Europe, University of Karachi and Goethe Institute, 2006), pp. 1-25.
5. Isaac Lewin, The Jewish Community in Poland (University of Michigan: Philosophical Library, 1985), p. 19.
6. Hurst Hannun, "The Concept of Human Rights", International Human Rights: Problems of Law And Practice, 2006, pp. 31-33.
8. George Turnbull, Observations Upon Liberal Education, In All Its Branches: In Three Parts (Millar: 1742).
9. Stefan-Ludwig Hoffman, Human Rights in the Twentieth Century (Cambridge: Cambridge University Press, 2010).
10. Abdullah al-Ahsan, "Law, Religion and Human Dignity in the Muslim World Today: An Examination of OIC's Cairo Declaration of Human Rights", Journal of Law and Religion, 2009.
(The writer is Supernumerary Professor, Department of History, University of Dhaka)