Human rights, freedom and civil rights vis-à-vis the state or other organisations exercising power have been incorporated into numerous national constitutions. The vast majority of states today are bound by international treaties to the protection, observance and guarantee of fundamental rights. Nevertheless, fundamental rights worldwide are often violated at different levels without sanctions.
Human rights have always had to be wrested from those in power. Their development goes back far beyond the intellectual and political upheavals of the Enlightenment and the French Revolution, and is rooted in the concept of equality of all human beings under natural law. The struggle for human rights has been accompanied by numerous setbacks to this day. Even in democratic societies based on the rule of law, what has been achieved is not self-evident or permanent. Human rights are in permanent conflict with political claims to power, values of security, ideological, religious, ethnic, gender-specific attempts at limitation, and increasingly also with neo-liberal economic interests. Freedom and civil rights therefore always require defense and active advocacy.
5th century B.C.: Representatives of the School of Sophism declare that there is a natural right above the laws created by man. (1) According to this natural right, all men are freely created. The Athenian philosopher Plato (circa 428 B.C. – 348/347 B.C.) warned against the all too "individualistic democracy with its uninhibited ideal of freedom and equality". (2) Nevertheless, the idea of man as a free individual is now in the world.
From about the middle of the 4th century: The philosophical school of the Stoa assumed that all human beings were by nature endowed with the same reason and therefore have the same rights. From this assumption of the equality of all people a demand for justice already emerged. (3)
In the Roman Empire, Cicero and Seneca in particular took up the ideas of the Stoa. However, they remained the subject of philosophical considerations and had no political impact. Despite some contrasts, there are similarities between ancient Greek ideas and the early Christian conception of man through the idea of equality. Humans, regardless of their origin or status, were created in the image of God. Although the early Christian conception of man is marked by comprehensive thoughts of freedom and equality, these remain essentially concentrated on ideas of spiritual salvation and the afterlife.
Thomas Aquinas (1224/5–1274) continued these ideas of Greek antiquity. He regards man as a rational being who, due to his nature, has a part in an eternal divine law. The positive laws formulated by man should be in harmony with common reason and the eternal law. The human conscience appears here as a moral instance (5), whereby for the first time a freedom of will of the human being is formulated. For Thomas Aquinas, the freedom of the individual lies in the very essence of man. This freedom appears as an ideal, which, however, did not entail any demand for the limitation of power. Nevertheless, the definition of an intrinsic value of personality is important for the further development of a modern concept of human dignity.
Wilhelm von Ockham (ca. 1285–1349) went a decisive step further here. Since the rights of the individual are natural, no human being has the right to deprive a human being of its natural rights. From this he consistently deduces a right of resistance, even a duty of resistance against a tyrannical ruler acting against natural law. (6)
The Golden Bull of 1356 (6), an essential component of the Imperial Constitution, also regulated the election of the king without papal participation rights and established privileges of the estates; a contractual guarantee of individual rights does not appear in the idea of the medieval society of estates. Thoughts of freedom and equality under natural law were limited to philosophical-theological considerations, they found further dissemination in the world of thought through Thomas Aquinas and Wilhelm von Ockham.
In early modern humanism, the focus was on the self-development of the human being by resorting to ancient ideas. The humanists formulated corresponding educational ideals and demanded a welfare and education state with a comprehensive, cross-tier educational mission and demanded a binding of secular rule to natural law.
Against the background of the Reformation set in motion by Martin Luther, as a result of which Protestants renounced the Catholic Church, the innate reason of man and his natural rights increasingly became the point of reference for thinking. Hugo Grotius (1583-1645) said that natural law does not know any religion and is immutable. (6) At the centre of his ideas were a universal community of nations and equal rights for all people, irrespective of their religion, derived from natural law. (7)
Bartolomé de Las Casas (1484–1566) already saw individual human rights, which he sees justified by natural law, reason and the (Christian) commandment of love. "Freedom," according to Las Casas, was "a right ancestral to man (...) from the beginning of nature endowed with reason". (8) On the background of the discovery and conquest of America he explicitly included indigenous peoples. The peasant and confessional wars resulted in a weakening of the imperial central power in favour of the territorial princes. As a result of the Peace of Westphalia (1648), which marked the end of the Thirty Years' War, the denominationally sovereign territorial state replaced the medieval state of the association of persons. The territorial ruler was only responsible to God. No law written by man restricted this absolute rule, it was detached from every control of rule (Latin: absolutus: detached).
The overcoming of the union state and the transition to an administrative state were theoretically supported by the works of Niccoló Machiavelli, Jean Bodin and Thomas Hobbes.
Niccoló Machiavelli (1469–1527) was not an advocate of an absolute state. Against the background of Florence, which was plagued by crises, he held the position of a stable order. (9)
Jean Bodin (1529–1596) was convinced, under the impression of the religious wars of the 16th and 17th centuries, that a stable state was needed to guarantee well-ordered living conditions. However, he maintained a ruler's attachment to natural law. (10)
Thomas Hobbes (1588–1679) finally gave up this bond. Man, according to Hobbes, who under the impression of the devastations of the Thirty Years' War was also oriented towards values of stability and order, without ordering power lives in the state of a war of all against all. For his own safety he had to give up his natural rights and entrust the supreme power to a sovereign. He would be above the laws. (11)
The development of an absolute rule, detached from all laws, naturally produced opposite doctrines.
John Locke (1632-1704) was the first to take an essential step towards a modern idea of human rights. The central approach of the pioneer of the Enlightenment is the idea that every state rule requires a contractual basis. For the first time, Locke defined the boundary of state power through the individual rights of man. (12) The decisive breakthrough for human rights in their modern form, however, came with the American Revolution. The declaration of the independence of the North American territories from the English colonial power (1776) is connected with the guarantee of fundamental rights by a constitution.
The Virginia Bill of Rights (13) of June 12, 1776 was groundbreaking for all further proclamations. It guaranteed the natural and inalienable equality, freedom and independence of all people. Other North American states followed the example of Virginia.
The Declaration of Independence formulated by Thomas Jefferson (1743–1826) remained general with regard to human rights. (14) It was not until 1991 that the American Federal Constitution included the Bill of Rights, which comprises 10 amendments. (15)
Thomas Jefferson and George Washington exerted great influence on the French Declaration of Human Rights of 26 August 1789 (Déclaration des droits de l'homme et du citoyen), which became an integral part of the French Constitution of 3 September 1791. (16) The declaration was based on a draft by Joseph Marquis de Lafayette (1757–1834), who had fought for American independence and was in close contact with George Washington and Thomas Jefferson. The declarations are very close in content and spirit. The French Declaration of Human Rights is an important milestone on the road to a modern democratic constitutional state based on the rule of law. (17)
Immanuel Kant (1724–1804) followed the French Revolution with great sympathy, but rejected a revolutionary process on the way to a human rights constitution. (18) He took another decisive step by combining the ideas of freedom and equality with a concept of human dignity. According to Kant, the purpose of human existence lies in this existence itself; in this lies the innate and inalienable dignity of man. The life of a being endowed with reason may not serve the use and purpose of a foreign will. Human life has no relative value, but its own inner value, which constitutes the dignity of the individual.
In 1848/49, the National Assembly in the Paulskirche in Frankfurt formulated rights aimed at safeguarding the dignity of the human personality and its freedom. The delegates gave priority to human rights, attaching greater importance to safeguarding the freedom of the individual against the power of the state than to national unification in the face of territorial division. A comprehensive catalogue of fundamental rights (19) was adopted on 27 December 1848. Although the rights formulated there were not included in the Reichsverfassung of 1871, they served as a basis for the Weimar Reichsverfassung.
The Reichsverfassung von Weimar (20), which came into force in 1919 after the lost war and revolution, for the first time contained a comprehensive catalogue of fundamental rights that was valid throughout the country. For the first time, women were also given the right to vote. In addition to the minor obstacles to the abusive application of emergency legislation, a serious shortcoming of the constitution was the absence of a pre-state inviolable core area of human rights. With a constitutional majority, the Reichstag was able to overrule fundamental rights or, with a simple majority, restrict them to the point of ineffectiveness - as a result, the National Socialists did not have to overcome any excessively high hurdles to the elimination of fundamental rights from the beginning of their rule in Germany in 1933.
The protection of human rights and the ideology of National Socialism are mutually exclusive; National Socialism stands in opposition to human rights and their natural, intellectual and civilizational foundations as irreconcilable opposites. Even if the Weimar Reichsverfassung was not repealed, the "Reichstagbrandverordnung" (21) of 28 February 1933, still signed by Reich President Hindenburg, is de facto the "constitutional document" of the "Third Reich". Via this and the "Verordnung zum Schutze des deutschen Volkes" (22) of February 4, 1933, which had already been issued earlier, all fundamental rights were suspended "until further notice", but actually until 1945.
The principle of the equality and freedom of all human beings inherent in human rights contradicted the racist concept of exclusion of the "Volksgemeinschaft", the individual right to self-development contradicted the totalitarian right of the regime to dispose of the "Volksgenossen" as part of the "Volkskörper". Ernst Rudolf Huber, one of the leading advocates of constitutional law of the "Third Reich", took the position that "in particular the individual's rights of freedom vis-à-vis the authority of the state (...) should disappear". There were "no personal, pre-state and extra-state freedoms of the individual that the state would have to respect. The isolated individual has been replaced by a Volksgenosse incorporated into the community, who (...) is included in the overall impact. (23)
Human rights were replaced by " popular law " (völkisches Recht"), which rendered lawless anyone who, according to National Socialist race criteria, did not belong to the "popular body". This comprehensive exclusion and deprivation of rights, the negation of all rights, the deliberate comprehensive destruction of human dignity, which led to the systematic murder of millions of people, could be implemented in a terrifyingly short time.
The Federal Republic of Germany's Fundamental Law (Grundgesetz, GG), which was initially conceived as a provisional measure until the final clarification of Germany's constitutional status, with its articles on fundamental rights is a normative delimitation against the disregard for human beings of the National Socialist unjust state. (24) It was adopted by the Parliamentary Council on 8 May 1948 and approved by the Allies, who had defeated National Socialist tyranny.
The 19 Articles of Fundamental Rights (25) are largely oriented on the Paulskirchen Catalogue of 1848, the "Weimarer Reichsverfassung" and the Universal Declaration of Human Rights of the United Nations of 10 December 1948, which was formulated not least under the direct impression of the National Socialist violent crimes.
The Fundamental Law of the Federal Republic of Germany is before and above the state powers, it is presupposed to these. The inviolable dignity of man, which is the duty of all state institutions to protect, marks the beginning of the articles on fundamental rights. According to Art. 1, para. 3, fundamental rights are directly applicable law, legislation, executive power and jurisdiction are bound by them. Articles 2 to 17 develop these fundamental rights. The dignity of the human being, the starting point of the German Federal Catalogue, establishes both equality and freedom rights.
While individual rights were gradually fought for as rights of defense and resistance against the all-powerful state, above all in the form of absolutist power, the genocides and crimes against humanity in the 20th century showed that the protection of human rights cannot be left solely to national responsibility, but requires international protective mechanisms. Even during the Second World War, on January 6, 1941, US President Franklin D. Roosevelt, in a speech to Congress (26), named four fundamental freedoms that would form the basis of a post-war world order in the future. Freedom of expression, freedom of religion, freedom from need and freedom from fear should be cornerstones of the new global order, in which human rights should be secured internationally and no longer solely by domestic orders.
With the Charter of the United Nations signed in San Francisco on 26 June 1945 (27), the protection of human dignity and rights, regardless of ethnicity, gender, language or religion, was for the first time elevated to the level of an obligation of the international community.
The Universal Declaration of Human Rights, proclaimed by the UN General Assembly on December 10, 1948, was a concrete expression of this commitment. (28) As a declaration it has no legally binding character, but it is an international, politically binding authority by which democratic states and democracy can be measured. It is essential that international law now recognises the individual as a legal subject, i.e. individual rights beyond national sovereignty. With the Charter of the United Nations of 26 June 1945, the individual became a subject of international law. (29)
In subsequent years, attempts were repeatedly made to counter the shortcoming of the declaratory nature of human rights through bilateral or multilateral treaties and to establish binding legal bases. The two human rights treaties of 16 and 19 December 1966 are groundbreaking in this respect. While the International Covenant on Civil and Political Rights defines individual rights (30), the International Covenant on Economic, Social and Cultural Rights formulates economic and social framework conditions (31) which are intended to enable the individual to live civil and political rights. (32) Both texts manifest the basic orientation of the UN's efforts to ensure that human rights are internationally recognised, to strengthen their protection and to regulate them in some areas in a binding manner. (33)
On 4 November 1950, the representatives of the member States of the Council of Europe, based in Strasbourg, signed the European Convention for the Protection of Human Rights and Fundamental Freedoms. (34) It is closely inspired by the 1948 Universal Declaration of Human Rights.
The experience gained in the Nuremberg Trials (International Military Tribunal 1945-1947) was incorporated into the case law of the European Court of Human Rights (ECHR), which was founded in 1959 by the members of the Council of Europe in Strasbourg to ensure compliance with the European Convention on Human Rights. It judges complaints from States, but also from individuals, relating to violations of rights recognized in the Convention. (35) Individual rights have thus become legally enforceable at European level.
Human rights, at least in theory, also constitute the central value- and norm-related basis of the European Union, which was founded in the 1950s as the European Economic Community (EEC) and in 1992 with the Treaty of Maastricht as a political union with transnational competences. With its supranational institutions, the European Union can legislate that directly binds states, institutions and citizens of member states.
The Charter of Fundamental Rights of the European Union (36) was proclaimed on 7 December 2000. With the entry into force of the Lisbon Treaty on 1 December 2009, it became legally binding for all Member States (except Great Britain and Poland). Respect for human dignity and for human rights as defined in the EU Charter of Fundamental Rights, equality, freedom, democracy and the rule of law are guaranteed by the respective constitutional systems of the member states. This was and is the criterion for accession to the European Union. Fundamental rights are binding on the institutions of the international community.
Human rights are further differentiated by their interaction with social and structural changes. In their present form, they have emerged from a centuries-long struggle against structures of power. Human rights are the answer to individual and collective experiences of injustice and violence sanctioned by the state. Even in states where they are bindingly anchored in the constitution, they require permanent defense at institutional and individual levels. Freedom and civil rights are thus in a constant tension with the need for security, which is entrusted to state functions of order, control, regulation and monitoring.
In particular, the neo-liberal concept of economic globalization, which has been gaining dominance for years, poses a challenge to the institutions created to uphold human rights. It creates a dynamic in which equality and freedom rights run the risk of being subordinated to economic interests. The dominant transnational financial system and an unregulated global market make it difficult or even impossible for political influence to socially soften the market forces. From a neo-liberal perspective, regulatory approaches seem anachronistic, but economic and social division is unavoidable and obvious in almost all societies as a result of their absence. The recognition that the possibility of actually exercising guaranteed freedom and equality rights across all strata of society presupposes the validity of fundamental social rights thus entails the necessity of political resistance in the spirit of human rights on a transnational level.
Human rights have universal validity regardless of cultural development or religion.
It is occasionally argued that human rights are the result and expression of occidental Christian culture and legal tradition and are imposed on other cultures in a neo-colonialist way. The idea of human rights, however, is not primarily a occidental-Christian one. On the contrary, occidental culture, for its part, required profound changes in order to be able to gradually assert the idea of human rights.
In the respect for human dignity and the uniqueness of the individual there is indeed a transcultural starting point. No culture or religion demands torture, the suppression of the culture of others, not even the restriction of freedom of expression. In all cultures, this is usually demanded by those in power to secure their positions of dominance, whereby cultural or religious traditions are regularly instrumentalized as arguments. Thus, religious, cultural, traditional or regional peculiarities cannot under any circumstances justify interference in human dignity. (37)
(1) See Kur Raaflaub, "Politisches Denken im Zeitalter Athens", in: Iring Fetscher, Herfried Münkler (ed.), Pipers Handbuch der politischen Ideen. Vol. 1: Early Advanced Cultures and European Antiquity. Munich 1988, pp. 273 and 319 f.; Andreas Haratsch, Die Geschichte der Menschenrechte. 4th ed., Potsdam 2010, p. 11 f.
(2) Platon, Politeia, 558c, edited and translated by Karl Vretska. Ditzingen 1982.
(3) Hans Joachim Störig, Kleine Weltgeschichte der Philosophie. 18th ed., Stuttgart 2016, p. 162.
(4) Thomas von Aquin, Summa Theologica, Vol. II, 1 qu. 91; cf. Gerhard Oestreich, Geschichte der Menschenrechte und Grundfreiheiten im Umriss. 2nd ed., Berlin 1978, p. 23.
(5) William of Ockham, III, Dialogus II ii, col. 28 and Dialogus VI, col. 38 f.
(6) A first overview: https://www.historisches-lexikon-bayerns.de/Lexikon/Goldene_Bulle,_1356.
(7) Hugo Grotius, De iure belli ac pacis libri tres, 1625, Vol. II Chapter VIII.
(8) Exemplary Francisco de Vitoria, De potestate civil: Über die staatliche Gewalt, 1528, translation by Robert Schnepf. Berlin 1992, p. 124.
(9) Las Casas, "Principia quaedam, Tertium principium", in: Ders., Werkauswahl, vol. 3/1, ed. by Mariano Delgado. Paderborn 1994, p. 47; see Haratsch, Geschichte der Menschenrechte, p. 33 f.
(10) See Herfried Münkler, Machiavelli. Die Begründung des politischen Denkens der Neuzeit aus der Krise der Republik Florenz. 2nd edition, Frankfurt am Main 2004, p. 97 f.
(11) Jean Bodin, Six livres de la république, I, 1.
(12) See Dieter Hüning, Freiheit und Herrschaft in der Rechtsphilosophie des Thomas Hobbes. Berlin 1998, p. 80 et seq. and, as an introduction, Christian-Friedrich Menger, Deutsche Verfassungsgeschichte der Neuzeit. 8th edition, Stuttgart 2003.
(13) John Locke, Two Treatises of Government, first anonymous publication 1689; critical translation: Bernd Ludwig, John Locke, Zwei Abhandlungen über die Regierung. Berlin 2012: An introduction to Locke's thinking on constitutional law: Matthias Mahlmann, Rechtsphilosophie und Rechtstheorie. 4th ed., Baden-Baden 2017.
(15) Text in: Udo Sautter, Die Vereinigten Staaten: Daten, Fakten und Dokumente. Stuttgart 2000, p. 145 ff.
(16) A first overview by Karl-Peter Fritzsche, Menschenrechte: Eine Einführung mit Dokumenten .3rd ed., Stuttgart 2016. The text of the amendments: https://usa.usembassy.de/etexts/gov/bill_of_rights.pdf.
(17) Text in: Heidelmeyer, Menschenrechte, p. 56 ff. and at: https://www.legifrance.gouv.fr/Droit-francais/Constitution/Declaration-des-Droits-de-l-Homme-et-du-Citoyen-de-1789.
(18) See Bodo Pieroth, Bernhard Schlink, Grundrechte. Staatsrecht II. New edited 33rd ed., Heidelberg 2017.
(19) Immanuel Kant, Die Metaphysik der Sitten, 1797/8, edited by H. Ebeling, 1990, p. 180.
(29) Text in: http://www.documentarchiv.de/nzjh/1848/grundrechte1848_ges.html.
(21) Articles 109-165 Weimarer Reichsverfassung (WRV). Text: http://www.documentarchiv.de/wr/wrv.html.
(22) The text: http://www.documentarchiv.de/ns/rtbrand.html.
(23) The text: www.documentarchiv.de/ns/schutz-dt-vlk.html.
(24) Ernst Rudolf Huber, Verfassungsrecht des Großdeutschen Reiches. 2nd ed., Hamburg 1939, p. 361.
(25) The text: http://www.gesetze-im-internet.de/gg/index.html.
(26) The German version of the text http://www.un.org/depts/german/menschenrechte/aemr.pdf; for this reason see, in particular, Preamble, para. 2.
(27) Text of the speech: http://voicesofdemocracy.umd.edu/fdr-the-four-freedoms-speech-text/.
(28) Text: https://www.unric.org/html/german/pdf/charta.pdf.
(29) Texts in German and English: http://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/ger.pdf; http://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf.
(30) Cf. Haratsch, Geschichte der Menschenrechte, p. 70 f.; Wolfgang Graf Vitzthum (Hrsg), Völkerrecht. 5. revised edition, Berlin 2010, marginal 14 ff.
(31) Text: https://www.admin.ch/opc/de/classified-compilation/19660262/201703270000/0.103.2.pdf.
(32) Text in: Bundesgesetzblatt (BGBl.) 1976 II, 428; www.institut-fuer-menschenrechte.de/fileadmin/user_upload/PDF-Files/Pakte_Konventionen/ICESCR/icescr_en.pdf.
(33) Examples of the Convention on the Prevention and Punishment of Genocide, adopted in 1948, and the Convention on the Elimination of All Forms of Racial Discrimination of 1966: Texts: https://www.uni-marburg.de/icwc/dateien/voelkermordkonvention.pdf and http://www.institut-fuer-menschenrechte.de/fileadmin/user_upload/PDF-Files/Pakte_Konventionen/ICERD/icerd_en.pdf.
(34) Text including Additional Protocols as amended by Protocols Nos 11 and 14: http://www.echr.coe.int/Documents/Convention_DEU.pdf; the Council of Europe was institutionalised on 5 May 1949 by 10 States (Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, United Kingdom) and is the oldest political union of European States. The driving force was, among others, the American Committee for a United Europe. The Federal Republic of Germany joined on 14 July 1950. The Council of Europe is the starting point for economic and political cooperation in Europe. A first introduction: Horst Keller, values instead of borders. Werte statt Grenzen. Der Europarat – Wegbereiter und Vordenker. Rheinbreitbach 1999: Klaus Brummer, Der Europarat. Eine Einführung. Wiesbaden 2008.
(36) Text of the Charter: http://www.europarl.europa.eu/charter/pdf/text_en.pdf, modified version: http://eur-lex.europa.eu/legal-content/DE/TXT/?uri=CELEX%3A12012P%2FTXT; summarising the contributions in: Jürgen Meyer (Ed.), Charta der Grundrechte der Europäischen Union. Kommentar. 4th ed., Baden-Baden 2014.
(37) On the universality of human rights see Christian Tomuschat, "Is Universality of Human Rights Standards an Outdated and Utopian Concept?", in: Robert Bieber et al. (Ed.), Das Europa der zweiten Generation. Gedächtnisschrift für Christoph Sasse. Kehl/Straßburg 1981, p. 585 ff.
Author: Dr. Christian Ritz