Human Rights

1
Human Rights

• Chapter 4 page 86 (Overview)

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So far we have looked at..

• The evolution of Human Rights (Natural Rights)
• Universal declaration of Human Rights (Post WW2)
• Canadian Bill of Rights (Diefenbaker)
• Charter of Rights and Freedoms (Entrenched Human
  Rights)

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The concept of Human Rights

• Incorporates not only liberties associated with
  being a member of a free political party but
  entitlement to a fair distribution of what
  society has to offer
• Food
• Shelter
• Jobs
• Education and or
• Wealth

4
Where do rights come from

• Natural law and positive law
• Natural grounded in natural law theory are
  viewed as enduring and universal that is,
  subject to minimal or no limitation
• Positive derived from positive laws (usually
  statues) that are shaped by political authority,
  whether dictatorial or democratic and are subject
  to cultural, social, economic and political
  changes within society (Iceberg Theory)

5
What would a critic say.

• Natural supporter would argue that the right to
  life is an absolute or non-restrictable right
• Positive supporter might concede the right by
  prohibiting capital punishment, but later may
  withdraw the right if social and political
  conditions warrant it.
• That is, if the murder rate rose during abolition
  of the death penalty
• Likewise, positive law rights are subject to the
  rule of law and are restrictable rights for the
  collective well-being of society

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• Natural rights advocate would claim supremacy of
  these rights over human laws and common for
  natural rights to be expressed as justification
  for civil disobedience and dissent

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Modern Philosophical Development

• Modern human rights developed by St. Thomas
  Aquinas
• Believed that basic human need under natural law
  such as self preservation and procreation
  require certain human rights
• However, this was attacked by positive law
  theorists
• Thomas Hobbes felt that there could be no rights
  without strong, coercive human laws to enforce
  them
• That is, human rights were both given and taken
  away by laws of the state

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• This is illustrated by Jeremy Bentham
• Right is a child of law from real laws come real
  rights, but from imaginary law, from laws of
  nature, come imaginary rights.Natural rights
  are simple nonsense.

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Modification of the State

• Positive Law command of the state
• John Locke modified this view
• Positive law of the state was embedded in a
  constitution, the foundation for legal order,
  which is based on natural law
• Locke believed that God created humans as a free,
  equal and independent no individual group had
  the right to impinge upon the freedom of another
  and the sole purpose of government was to protect
  individuals against arbitrary acts of others who
  would interfere with their freedom

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• Locke approved of revolt when the state did not
  use power for the common good, but for selfish
  purposes
• This constitutional liberty was adopted by both
  leaders of the French and American Revolutions
  that became their legal fabric at the end of the
  18th century

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Cue Jean-Jacques Rousseau

• Social Contract Theory a contemporary approach
  to government and human rights
• Social contract expressed the idea that all
  persons within a state were deemed to have
  entered voluntarily in to a contract with one
  another to form a civilized society
• Likewise, the promise to adhere to the laws of
  society, collective society or the state that
  would protect and guarantee equality for each
  individual

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John Stuart Mill on Liberty

• Human Liberty was comprised freedom on conscious
  (thought, feeling, opinion and sentiment),
  freedom of expression, and the the right to
  publish, liberty of tastes and pursuits and
  freedom to unite
• These freedoms are not absolute because they
  should not deprive others of the same equal
  opportunities
• Mill has more influence than any other
  philosopher in the modern notion of Liberty and
• Mills approach of liberty is most evident in the
  Canadian Charter of Rights and Freedoms

13
Modern Perspective

• American philosopher John Rawls
• Theory of justice is based on the greatest degree
  of individual liberty and equality that is
  compatible with similar rights for all
• Idea of distributive justice provides that lifes
  good things, such as liberty, opportunity, wealth
  and self-respect should be distributed equally,
  unless an unequal distribution would help those
  less fortunate
• Rawls theory provides basis for s. 15(2) of the
  Charter which exempts Affirmative Action Programs
  from claims of discrimination

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Classifying Rights Terminology

• Liberty or freedom without interference by the
  state is known as civil liberties
• 4 Categories of Liberties
• Political Civil Liberties freedom of
  association, freedom of assembly, freedom of the
  press, freedom of conscious and religion
• Legal Order Civil Liberties freedom from
  arbitrary arrest, search and seizure of person,
  premises and access to counsel

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• Economic Civil Liberties free collective
  bargaining, right to strike, freedom from state
  regulation and interference of economic affairs
• Liberty of Human Rights Civil Liberties equality
  of employment, opportunity or of access to public
  places without discrimination on account of race,
  colour or religion or ethnic or national origin
  or ancestry

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The Weight of Human Rights

• An individual rights are weighed against his or
  her responsibilities to other citizens and to
  society as a whole
• Greater harm analysis the exercise of
  individual freedoms or rights should not cause
  greater harm to another individual group