Bill of Rights: Principles and Doctrines

Bill of Rights Overview

• Topic 1 explores the Bill of Rights' meaning, fundamental principles, and doctrines, alongside Human Rights.
• Different scholars and generations attribute diverse meanings and connotations to the term "Bill of Rights."
• A 'Bill of Rights' can represent a formal statement of rights, summarizing fundamental rights and freedoms guaranteed against state or government violation.
• A Bill of Rights guarantees people's rights and freedoms relative to their governments, it also defines the scope and limits for enjoying these rights and sets rules and procedures for their enforcement.
• Human rights are entitlements due to every human being from birth, qualified only by being human and governments affirm not grant these rights.
• Human rights are central to human dignity and worth constituting a vital subject in contemporary constitutions.
• Constitutions are assessed by their success in securing fundamental human rights and freedoms.
• It's increasingly difficult to imagine modern society without a Bill of Rights.

Concept of Human Rights

• A right is a legally protected interest that a person is justified in making, though scholars disagree on a comprehensive definition of human rights.
• Defining human rights is controversial, leading some scholars like Shestack to associate them with attributes like 'important', 'moral', and 'universal'.
• The association of 'important', 'moral', and 'universal' is considered a generalization because not all entitlements with those attributes are human rights.
• Cassese defines human rights as an expansive desire to unify the world' via guidelines for all governments, and human rights are conferred rather than inherent, governments can decide their relevance.
• Viewing rights as 'guidelines' is antithetical to understanding human rights as inherent entitlements, which cannot be granted/deprived without affronting justice.
• Human rights promotion and protection goes beyond unifying the world.

Philosophical Foundations

• A review of the philosophical foundations of human rights identifies three main theories: naturalism, positivism, and Marxism.
• Social sciences have presented culture-, conflict-, and interest-based theories stressing human rights as products of social forces and interactions.

Natural Law (Rights) Theory

• According to natural law (rights) theory human rights are viewed as natural rights belonging to every individual.
• Sophocles and Aristotle originally postulated the natural law (rights) theory, later elaborated by Greek Stoics and Romans.
• Thomas Aquinas saw natural law as part of God's law, conferring immutable rights.
• Natural rights and freedoms were identified by contemplating an individual's condition in a stateless society.
• Grotius and Pufendorf's modern secular theories detached natural law from religion, with Grotius defining a natural human characteristic as the social impulse for peace and harmony.
• Grotius defined natural law as a ‘dictate of right reason', where actions conforming to rational beings were right/just, and those disturbing social harmony were wrong/unjust.
• Natural law theory led to natural rights theory associated with modern human rights, and John Locke premised his philosophy on a human state of nature.
• In a state of nature, men and women were free, equal, and able to determine their actions without subjection to another's will.
• A social contract was entered mutually to form civil society and a political authority to protect rights concerning life, liberty, and property and governments were obligated to protect these rights.
• John Locke's theory formed the principle that law should protect the individual's rights against government abuses and Locke argued that beings not governments came first.
• Human rights are people's inherent possessions, unrelated to societal intervention and people create society to protect endowed rights through suitable laws.
• Natural rights theory spurred revolts against absolutism in the late 18th century visible in documents like the French Declaration of the Rights of Man, and the US Declaration of Independence.
• The ideas of individual rights and popular gained acceptance through philosophers such as Locke, Montesquieu, and Jefferson gaining acceptance in Europe/America during the 18th C.
• The Virginia Bill of Rights in 1776 declared all men free, independent, and possessing inherent rights (life, liberty, and property).
• Natural rights theory was seen a barrier between individuals and government.
• Advocates devised mechanisms like separation of powers and the rule of law, leading to institutions that protect natural rights against government infringement.
• Natural rights theory contributes to human rights discourse by identifying and providing for the respect for human dignity, freedom, and equality.
• The natural rights theory fails to explain how to determine the norms considered as part of natural law and inherently inalienable.
• Locke viewed self-sufficiency, life, liberty, and property as sufficient to meet demands in a state of nature, but the modern-day society has become more complex.
• The lack of flexibility is a central criticism of natural rights theory, so the rights considered natural can differ among theorists.
• Bentham deemed natural rights theory a fallacy over time it regained importance following World War II, human rights are recognized as enforceable declarations, not pious ones.

Positivist Theory

• Legal positivism: a theory founded on empiricism and rejection of metaphysics.
• August Comte set out the positive method: science should concern empirical facts, man must control/rule over nature.
• Early legal positivists opposed natural law due to its unscientific nature and inclination to maintain the status quo rather than legal changes.
• Legal positivism isn't simple/singular, varied over time, but consistently views law as a product of human action.
• Classical positivists attributed all authority to the state/officials, rejecting any transcendental source for law beyond existing legal systems.
• Human rights originate through law and sanctions attached to it, it viewed what the law 'ought to be' as worthless.
• Austin stated jurisprudence concerns positive laws, or laws strictly so called, without regard to their goodness/badness, so natural law/rights can't deduce actual law.
• Scholars insisted on separation of law and morals.
• Kant argued "rights" and "duties" differ in legal/moral contexts terms have a meaning determined by positive law.
• Bentham dismissed 'morality' or natural law as nonsense without empirical verification.
• Positivism is accused of negating moral philosophical basis of human rights, it leads to obeying law regardless of immorality, like Nazi anti-Semitism/South African apartheid.

Marxist Theory

• Marxism focuses on human beings in society and is rooted in production forces, production relations, and political/legal arrangements.
• Karl Marx viewed the 'law of nature approach' as idealistic and ahistorical, seeing nothing natural/inalienable about human rights.
• Marx regarded individual rights as a bourgeois illusion in a society with capitalist monopoly.
• Marxist theory views law, justice, morality, democracy, and freedom, as historical categories shaped by material conditions/social circumstances.
• It sees a person's essence as the potential to fully use abilities and satisfy needs.
• Actualizing potential hinges on expressing as social beings in a classless communist society.
• Rights are granted by the state, exercised contingently on fulfilling state/societal obligations.
• Karl Marx thought human rights privileges a specific social class, the bourgeoisie, to exploit the proletariat.
• Marx stated human rights for individual freedom and liberty leads to society’s disunion from individuals' class status between bourgeoise and the proletariat.
• Inequalities are considered as inherent crises within all directions of society concerning social, economic, and political elements.
• Marxist theory critiques capitalism and its shortcomings, capitalist will inevitably destroy itself, oppressed workers will overthrow owners, and take control of producing with a classless society.
• Despite philosophical differences, human rights have been known to all human societies since time immemorial.

Human Rights Classifications

• Human rights can be civil, political, social, economic, and cultural, and may be enjoyed individually or collectively.
• Civil and political rights include self-determination, life, freedom from torture and inhumanity, freedom from slavery and forced labor, and the right of liberty with security.
• Civil/political rights also include: freedom of choice/movement, fair trial, privacy, thought, conscience, and religion, freedom of assembly/association, and marriage with founding a family.
• The right to participate in government directly/through elected officials, nationality, and equality before law are also civil/political rights.
• Economic, social, and cultural rights include the right to work, good labor conditions, remuneration, living, organizing/joining unions, collective bargaining, equal pay, and social security.
• Right to owning property, education, participation in cultural life, enjoying scientific progress are economic social and cultural rights.
• Civil and political rights are negative rights restricting state authorities, social/economic rights are positive rights extending the scope of state functions.
• Human rights change, with international processes involved, and are specified reacting to threats/repression like religious freedom.
• Classification of human rights aren't rigid due to interrelation/interdependence and they aren't absolute and are limited for reasons like state security, survival, etc.
• Constitutions like Kenya's include limitation/derogation clauses to control enjoyment of rights and in emergencies threatening national life/security.

Scope of Human Rights

• Human rights are broadly applied and recognized across states with divergent principles, operating nationally/internationally.
• Initially human rights were of national concern, the UN Charter universalized them promoting/encouraging respect for rights/freedoms.
• The International Court of Justice (ICJ) in the Barcelona Traction Case found basic human rights were binding on all states stating governments ensure protection/promotion and adopt standards domestically.
• A state’s progress can depend on their citizens enjoying human rights resulting in peace, advancement, and stability.
• Human rights became a potent instrument of diplomacy, but governments are often their worst violators and standards with effective enforcement are required.