HOW PHILOSOPHY HAS CONTRIBUTED TO THE DEVELOPMENT OF HUMAN

RIGHTS1

Human or fundamental rights is the modern name for what have been traditionally known as
natural rights, and these may be defined as moral rights which every human being,
everywhere, at all times, ought to have simply because of the fact that, in contradistinction
with other beings, he is rational and moral. No man may be deprived of these rights without
grave affront to justice2

Various explanations have been advanced by the literature as reasons for the emergence of
Human rights, among these were the post World War calls to make the world a safer place
for democracy3, as well for the avoidance of catastrophe.4 The preamble to the Universal
Declaration of Human rights captures them vividly5.

What this paper seeks to do is to sojourn through time and trace the involvement of
philosophy in juxtaposition to what have today earned the coinage ‘human rights’6. The
spotlight would focus predominantly on natural law, for in the development of the notion of
natural rights, the theory of natural law played a dominant part7.
The journey will begin with a look at what human rights are, then take a prefatory look at
how natural law has worked in stated periods from early Greece to date. It will end with a
summary of highlights. It is proposed that throughout history, natural law has provided the
philosophical pedestal for protecting certain freedoms

WHAT ARE HUMAN RIGHTS?

Several definitions as to what human rights are, in addition to that of Ezejiorfor’s (supra)
have been proffered. Per Cranston, a human right is something of which no one may be
deprived of without a great affront to justice. He continues, there are certain deeds, which
should never be done, certain freedoms which should never be invaded, some things which
should never be invaded, some things which are supremely sacred8.

Lauterpacht’s spectacles capture human rights as universal rights or enabling qualities

attaching to the human being. These qualities follow from the realisation that as a matter of
scientific fact, man is distinguishable from other living beings because he is a rational and
moral person who must shape his life in accordance with moral and rational purposes9.

1
Ismael Andani Abdulai (Bsc. Admn), 2nd year LLB student, University of Ghana
2
Ezejiofor p.3
3
Lauterpacht, International Law and Human Rights p.78
4
Nino, powerpoint pg 18
5
UNDHR, 1948
6
The name Human Rights attributed to Eleanor Roosevelt,
7
Op. cit. n1 p.3
8
Cranston, M Human Rights Today (1962) p.9, quoted in ibid., at p.3
9
Lauterpacht
What is consistent in these and many other definitions it seems is the notion that there exists
certain qualities of human beings, the taking away of which should not, cannot and must not
be countenanced because they are attached to our being by virtue of our being. Three words,
as utilised in the UNDHR best describe these, viz, INHERENT, INALIENABLE and
UNIVERSAL.

The use of these words today are perhaps among the strongest testimony, that contemporary
notions about human rights have a strong rapport with the philosophical school of natural
law.

NATURAL LAW

Natural law refers to the philosophy of law which proceeds from an assumption that law is a
social necessity based on the moral perceptions of rational persons and that any law which
violate certain moral codes is not valid at all. Human law is thus based on certain universal
principles, discoverable through reason or revelations, which are seen as being eternal,
immutable, and ultimately based on the nature of human beings.10

Natural law is law which not even the king can disregard because it is superior. Indeed,
Sophocles tells the tale of Antigone; where even on pain of death she defied the orders of
King Creon by burying her brother. She refused to ‘brave God’s vengeance’ for the fear of
the ‘wrath of any man’. She preferred to hang herself11

THE NATURAL LAW THEORISTS

Firstly, it is important to point out that before the formulation of any theory of natural law
citizens of certain Greek states enjoyed certain rights which are today considered among our
fundamental rights: isogoria(equal freedom of speech), isonomia(equality before the law)
isotimia(equal respect for all) .12 Although there may be a logical distinction between all these
and the idea of inherent rights in the modern sense, it is a distinction without substantial
difference.13

Discourse on jurisprudence generally credits Ancient Greece as the starting point of legal
philosophy, not because other civilisations had no philosophy of their own but rather because
the Greeks of yore had more permanent means of documenting their way of life.14 This paper
would therefore begin, in line with academic trend, with the same period.

EARLY GREEKS AND SOPHISTS

Prior to the 5th Century B.C, law and religion in Greece were generally seen as the same15.
Law was issued from the gods, a gift from Zeus to humankind, and known to humankind

10
Jurisprudence 3rd ed.(law cards) Cavendish Publishing ltd.
11
See Antigone by Sophocles
12
See Ezejifior,3; lauterpacht,80
13
lauterpach,80
14
See Bodenheimer,3; Lauterpacht,80,..
15
through revelation16 and hence the famous Oracle at Delphi where many a Greek sought
counsel.17 These notions of what Ancient Greek civilisation looked like are well captured in
the writings of classical writers as Homer, 18Sophocles,19 Hesiod20 and Aeschylus21.

At the turn of 5 B.C, a major shift in paradigm occurred. Philosophy became divorced from
religion, and the ancient, traditional forms of Greek life were subjected to searching
criticism22 . Natural law emanating from the Divine became natural law emanating from
reason23. This era began the epoch of the Sophists.

The Sophist Antiphon for instance drew a distinction between nature and law claiming that
the commands of nature are necessary and inexorable while the law was just an artificial
arrangement changing with the times, men and circumstances. He taught that nobody can
violate the laws of nature with impunity but one could get away with flouting a law if he
remained undetected.24

Another important sophist, Socrates, was consistent in his teachings on ethics based on an
ascertainable system of morals and values. He was so pious to his convictions that these
words are recorded of him at his trial, after having been found guilty of corrupting the morals
of the youth: 'Men of Athens, I honour and love you, but I shall obey God rather than you,
and while I breathe, and have the strength, I shall never turn from philosophy’.25 Again, here,
we see a certain consistency in obeisance to a greater power over the powers of men

THE STOICS

The Greek Stoics are credited with being the first at systematically formulating the concept of
natural law as a formal corpus of law26 they are largely responsible for the continuation of
the tradition of freedom and equality in Roman political and legal philosophy.27 To them,
natural law was universal in that it applied not only to citizens of certain states but also to
everybody everywhere in the cosmopolis. It was superior to any positive law and embodied
those elementary principles of justice, which were apparent to the “eye of reason”. It was to
them an entitlement by virtue of being human and rational28. They taught that there is one

16
Bodenheimer
17

18
Iliad, Odyssey
19
Oedipus Rex
20
The Theogony

21
The Oresteia
22
Bod5
23

24

25
Source: The Penguin Book of Historic Speeches. MacArthur, Brian, ed. Penguin Books, 1996 in "Socrates."
Microsoft® Student 2008 [DVD]. Redmond, WA: Microsoft Corporation, 2007.

26
Eze3
27
Lauterpacht
28
Eze3
common law of nature, based on reason, which is valid universally throughout the universe
and which is binding on all men everywhere29.

Roman stoics also continued the tradition of natural law and Cicero is quoted as having said
these words:

It is of universal application, unchanging and everlasting… it is a sin to try to alter this law,
nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it
entirely. We cannot be freed from its obligation by Senate or People… there will not be
different laws at Rome and at Athens or different laws now and in the future, but one eternal
unchangeable law will be valid for all nations and for all times30

We are yet again confronted with the notions of universality, inherence and inalienability.

THE MIDDLE AGES

The notions of the existence of a superior law subsisted even in the middle ages( 350 AD to
about 1450)), what Lauterpacht describes as a striking continuity of thought between the
Stoics and the most representative political literature of the Middle Ages , in the affirmation
of the principle of the higher law.31 Philosophical and political thought, regarding natural
law, in this era was largely commandeered by the church, even though biblical references
dating back to St. Paul exist,32 which references Bodenheimer interprets as recognition of an
innate moral sense in man, which, if properly developed, directs him toward the good even in
the absence of a written law known to him.33

St. Thomas Aquinas, regarded as the most influential of the period,34 for instance defined
natural law, in his work De Legibus as ‘the participation in the eternal law of the mind of a
rational creature’ of which even the state is subject to. He argued that laws that prescribed
anything contrary to this must not be observed, for ‘we ought to obey God rather than men’.35
The focus of natural law in this epoch was God and the view that the ruler is under the
supremacy of the God’s law was the principal feature of the political theory of the era36 .

THE REFORMATION AND THE SOCIAL CONTRACT THEORISTS

By the end of the Middle Ages the substance of what proved to be the doctrine of natural
rights of man was well established 37 however it succumbed temporarily to a hiatus,

29
Bodenheimer
30
De Republica, quoted in Eze 4
31
Lauterpacth 84
32
Bible, Romans 2: 14-15
33
Bodenheimer 22
34
Eze,4; bodenheimer24
35
Boden 26
36

37
attributed to the teachings of Niccolò Machiavelli as well as the absolutism of the nascent
nation state in the 16th century.38

The movement however was revitalised, as writers have suggested, because of the
Reformation that followed the religious struggles of the time, as well as the emergence of the
Social Contractualist and their theories in the 16th and 17th centuries. 39

The reformation (spear-headed by the likes of Martin Luther, John Calvin and Henry VIII)
brought with it a widespread outcry for the natural rights of freedom of conscience and
religious belief40, an outcry perhaps justifiable because of the wanton dissipation and
corruption that crept into and reared their ugly heads in the Catholic Church.
The growth of absolutism throughout Europe in the middle ages with it brought challenges to
individual liberty and as such, political theorist of the time needed a philosophical pedestal
with which they could stand on in their attempts at reviewing the relationship between the
state and the individual hence the Social Contract school of thought emerged41

John Locke, one of its major proponents, argued that the natural state of man was a state of
perfect freedom in which men were in a position to determine their actions and dispose of
their persons and possessions as they saw fit. He added that it was a state of equality in the
sense that no man in this state was subjected to the will or authority of any other man. This
state of nature he described was governed by a law of nature, which, looking toward the
peace and preservation of mankind, taught men that all persons were equal and independent
hence no one ought to harm another. As long as the state of nature existed, all had the power
to execute the law of nature and punish offenses against it with their own hands. In order to
forestall the excesses intrinsically associated with these however, men entered into a contract
of sorts to form a community and obey a political authority42. In his words, and most
important to the purpose of this paper, “the law of nature stands as an eternal rule to all men,
legislators as well as others.”43 He maintained that men, in establishing a political authority,
retain the natural rights of life, liberty and property.

The very notion of the social contract implies, therefore, the existence of rights, which the
individual possesses before entering the contract. Most of the proponents of this doctrine
posited that there were insurmountable limits to the power of the State not only on account of
the terms of the contract, but also the simple reason that some rights because of the nature of
man, are inalienable44

Locke’s teaching fanned the flames that justified the early American Revolution and
Declarations of Right as well as the French Declarations of 1789 and 179145 and perhaps the
various other human rights provisions in municipal constitutions.46

38
Lauterpacht 86; Ezejiofor4
39
Lauterpacht 86; Ezejiofor4
40
eze
41
Eze,4 ; boden 45
42
See Bodenheimer 45, Locke, OF CIVIL GOVERNMENT
43
Locke
44
Lauterpacht 87
45
LAUT
46
HUMAN RIGHTS TODAY

The current thinking on human rights, internationally, was very belated and reactive and
perhaps to Hitler’s credit47 . It was not until the world saw two devastating wars, at the cost of
tens of millions of lives that the traditional and pedantic notions of international law,
sovereignty and non-interference led to the practical need and realization of a law higher than
positive law.48 This is manifested most importantly in the immediate post World War II
Universal Declaration of Human Rights (and the several conventions passed since)49 which
acknowledge the inherence of certain rights50 as well as the universality51 and inalienability52
of those rights. We cannot but remark how, throughout history, and until the present, certain
characteristics, attributable to humanity, have been held to be so special and dear that it
would just seem so reprehensible to tamper with them.

They may have been known as Natural Rights then and now Human rights,53 but by whatever
appellation we nominate them, one thing is clear, and it is that humanity’s consistent thirst to
be, has found an instinctive satisfaction in the well of Natural Law theory from where we
may drink, each time we thirst. Perhaps the inventions that Nino talks about.54

CONCLUSION

Natural law has not come without its opponents. For instance, it came under attack from
rationalist like Montesquieu, Hume and Adam Smith who criticize its assertions that there are
some ultimate, metaphysical purpose to human existence and human society separate from
the moral and physical realities of everyday life. It also came under attack as the 19 th century
saw the rise of the positivist approaches to law, which posited that natural law belonged to
the realm of morality, and not law.55

These notwithstanding, we can discern the following thus, in any attempt at recognizing the
role of philosophy in the development of human rights:

a. Certain aspects of humanity have from time immemorial had some form of protection
(isogoria, isonomia etc…);

47
Frankel, Marvin E. Reason for Hope: The International Human Rights Movement at 50 Source: Encarta
Yearbook, May 1998.

48
Lynch, John Edward. "Natural Law (ethics)." Microsoft® Student 2008 [DVD]. Redmond, WA: Microsoft
Corporation, 2007

49
Convention on the Prevention and Punishment of the Crime of Genocide (1948); the International Covenant
on Civil and Political Rights (1966); and the International Covenant on Economic, Social, and Cultural Rights
(1966) etc...

50
Article 1 UDHR
51
Article 6 ibid
52
Article 30 ibid
53
The name Human Rights attributed to Eleanor Roosevelt,
54

55
Jurisprudence 3rd ed.(law cards) Cavendish Publishing ltd.
b. Although the coinage ‘human rights’ is a relatively novel one, throughout history,
there have been consistent notions that certain rights are so fundamental and
important that taking them away would be dehumanizing. These have somewhat been
philosophically justified on the ground that such rights are inherent, inalienable and
universal. Each time there was the need to secure liberties, the flag of some natural
and inherent rights was waved as a justification;

c. The ideas of human rights seem to transcend whatever notions of international law
and non interference there may have been, especially post WWII and

d. Ideas of natural law are systematically being actualised into positive law (especially
post American Independence and French Revolution).