Satya Arinanto

Professor of Constitutional Law

Faculty of Law University of Indonesia

Depok
Odd Semester, 2020-2021
} The expression “human rights” is relatively new,
having come into everyday parlance only since
World War II and the founding of the United
Nations in 1945.
} It replaces the phrase “natural rights” which fell
into disfavor in part because the concept of natural
law (to which it was intimately linked) had become
a matter of great controversy, and the later phrase
“the rights of Man”, which was not universally
understood to include the rights of women.

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} Trace the concept back to ancient Greece and
Rome, where it was closely tied to the pre-
modern natural law doctrines of Greek
Stoicism (the school of philosophy founded
by Zeno of Citium, which held that a universal
working force pervades all creation and that
human conduct therefore should be judged
according to, and brought into harmony with,
the law of nature).

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} In part because Hellenistic Stoicism played a key
role in its formation and spread, Roman law may
similarly be seen to have allowed for the existence
of a natural law and, with it, pursuant to the jus
gentium ("law of nations"), certain universal rights
that extended beyond the rights of citizenship.
According to the Roman jurist Ulpian, for example,
natural law was that which nature – not the state –
assures to all human beings, Roman citizen or not.

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} It was not until after the Middle Ages, however, that
natural law doctrines became closely associated with
liberal political theories about natural rights. In
Greco-Roman and medieval times, natural law
doctrines taught mainly the duties, as distinguished
from the rights, of "Man".
} Moreover, as evident in the writings of Aristotle and
St. Thomas Aquinas, these doctrines recognized the
legitimacy of slavery and serfdom and, in so doing,
excluded perhaps the most central ideas of human
rights as they are understood today – the ideas of
freedom and equality.

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} For the idea of human (i.e., natural) rights to take
hold as a general social need and reality, it was
necessary that basic changes in the beliefs and
practices of society take place, changes of the sort
that evolved from the thirteenth century to the Peace
of Westphalia (1648), during Renaissance and the
decline of feudalism.
} When resistance to religious intolerance and political-
economic bondage began the long transition to
liberal notions of freedom and equality, particularly in
relation to the use and ownership of property, then
were the foundations of what today are called human
rights truly laid.

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} During this period, reflecting the failure of rulers to meet
their natural law obligations as well as the unprecedented
commitment to individual expression and worldly experience
that was characteristic of the Renaissance, the shift from
natural law as duties to natural law as rights were made.
} The teachings of Acquinas (1224/25-1274) and Hugo Grotius
(1583-1645) on the European continent, and the Magna
Charta (1215), the Petition of Rights (1689) in England, were
proof of this change. All testified to the increasingly popular
view that human beings are endowed with eternal and
inalianable rights, never renounced when humankind
"contracted" to enter the social from the primitive state and
never diminished by the claim of "the divine right of kings“.

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} It was primarily for the seventeenth and eighteenth
centuries, however, to elaborate upon this modernist
conception of natural law as meaning or implying natural
rights. The scientific and intellectual achievements of the
seventeenth century – the discoveries of Galileo and Sir
Issac Newton, the materialism of Thomas Hobbes, the
rationalism of Rene Descartes and Gottfried Wilhelm
Leibniz, the pantheism of Benedict de Spinoza, the
empiricism of Francis Bacon and John Locke – encouraged
a belief in natural law and universal order; and during the
eighteenth century, the so-called Age of Enlightenment, a
growing confidence in human reason and in the
perfectibility of human affairs led to its more
comprehensive expression.

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} Particularly to be noted are the writings of the seventeenth-century
English philosopher John Locke – arguably the most important natural
law theorist of modern times – and the works of the eighteenth-century
Philosophes centered mainly in Paris, including Montesquieu, Voltaire,
and Jean-Jacques Rousseau.
} Locke argued in detail, mainly in writing associated with the Revolution
of 1688 (the Glorious Revolution), that certain rights self-evidently
pertain to individuals as human beings (because they existed in "the
state of nature" before humankind entered civil society); that chief
among them are rights to life, liberty (freedom of arbitrary rules), and
property; that, upon entering civil society (pursuant to a "social
contract"), human kind surrendered to the state only the right to enforce
these natural rights, not the rights themselves; and that the state's
failure to secure reserved natural rights (the state itself being under
contract to safeguard the interests of its members) gives rise to a
right to responsible, popular revolution.

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} The Philosophes, building on Locke and others and
embracing many and varied currents of thought with a
common supreme faith in reason, vigorously attacked
religious and scientific dogmatism intolerance,
cencorship, and social-economic restraints. They
sought to discover and act upon universally valid
principles harmoniously governing nature, humanity,
and society, including the theory of the inalienable
"rights of Man" that became their fundamental ethical
and social gospel.

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