Is It an Extension of Natural Right - Dissertation Example

Human Rights: Is it an Extension of Natural Right? I. Introduction The universally recognized cardinal rule is that “all human beings are born free and equal in dignity and rights”. Each human being having been endowed with intellect, “reason and conscience and should act towards one another in a spirit of brotherhood” therefore every person has the natural obligation to respect the dignity, person, privacy and peace of mind of another and shall not deliberately or negligently cause any loss or inflict damage or injury to another. Indeed, these rights are characterized as natural rights which are inalienable and inherent to all human beings regardless of creed, gender, race, colour, language, political persuasions or affiliations, nationality, social standing, property ownership, birth or other status. (United Nations Universal Declaration of Human Rights, 1948) These rights to life, property, liberty and peaceful co-existence among men and nations are based on equity and natural obligation however without any positive, substantive and procedural laws to govern the actions of each man and nation, then anarchy, chaos, and lawlessness ensue as men and nations are, at times, motivated by power, self-interest and greed. This being so, they are predisposed to use violence and inflict harm upon those who stand in their way. The aggrieved party indeed has natural rights to be protected against any transgression, tort, or injury however without any legal structure that prescribes how relief or restitution may be instituted then the compulsory compliance cannot be effected. It would appear that duly constituted governments have enacted laws which enshrine the basic human rights to life, liberty and property, including, among others, the right to free speech and assembly, freedom of abode, equal opportunity and more importantly, the right not to be discriminated against by reason of gender, race, disability, education, belief or political affiliation. II. Statement of Issue/s One school of thought is that human rights is simply an extension of natural rights making the same self-executing thus this paper shall determine if this proposition or theory may be defended and supported by statutory enactments as well judicial interpretations. III. Statement of Relevant Historical Development In this jurisdiction, the rights evolution started in 1689 when the Parliament enacted the Bill of Rights, otherwise known as An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown. It delineated the powers of the sovereign, the Parliament including its freedom of speech, the necessity of regular elections and the right to appeal the monarch without apprehension of reprisal or punishment. It similarly re-instated the liberty of Protestants to arm and protect themselves within the realm of law as lawless elements were themselves armed and employed ruses contrary to law. Even the succession to the throne was subject of a decree which was crafted in 1700 and took effect in 1701, otherwise known as the 1701 Act of Settlement the Bill of Rights. However the enactment in 1931 of the Statute of Westminster in each of the Commonwealth realms marked the beginning that the Bill of Rights cannot be altered in any realm except by its own parliament, and if applicable by convention with the consent of all the other realms, if it involves the succession issues to the shared throne. In this jurisdiction, the Bill of Rights is complemented by Magna Carta 1215 which is a written instrument granting a more limited power to the king respecting property and successional rights of barons and freemen who held lands directly of the Crown, including the fees levied, payment of debts, services to be rendered and such other rights are inscribed to avert any dispute. While Habeas Corpus Act 1679 confers rights upon those persons charged of an offense but are nonetheless unduly detained may file a petition for such person or body to be produced at such time and place determined by the judge upon payment of fees. On the other, Parliament Acts 1911 and 1949, respectively, explicitly provided the powers and functions of the parliamentary. The aforementioned enactments delineating the powers of the Crown as well as the parliament and conferring rights to persons are the fundamental instruments of the Constitution which is considered not codified as it was not written in a single instrument. Although within the realm of the Commonwealth, Scotland is governed by a separate instrument known as the Claim of Right Act. Nonetheless, the influence of the English Bill of Rights over other countries cannot be refuted as the United States Bill of Rights is anchored on its basic principles and teachings. The Act of Settlement in 1701 introduced the concept of parliamentary sovereignty and limited the powers of the monarch which led to the establishment of constitutional monarchy and with the enactment of penal laws, the restive political and religious situation prevailing in Scotland, England and Ireland during the 17th century was eventually settled. The English Bill of Rights similarly inspired the crafting of the United Nations Universal Declaration of Human Rights, including the European Convention on Human Rights. The dynamics of the rights accruing to an individual is continuously evolving and may be considered as expanding to embrace rights which were not contemplated or envisioned during the earlier years. Wars in the present setting, the rules of engagement had to be modified to include prohibition of the use of certain armaments as it may annihilates the human race or cause serious damage to the environment. So also, laws are enacted to further protect the rights of individuals against any excesses of public officers, members of the parliament and the government in general. The legal rights evolution involved the prohibition of the use of excessive or cruel punishment for persons accused or convicted of a crime and more than a decade past when the Defamation Act 1996 was enacted allowing members of parliament to waive parliamentary immunity over cases involving libelous or slanderous publications but its primary objective is to afford the individual to litigate on equal footing without fear of intimidation or retribution as well. As earlier articulated, this jurisdiction does not have a written Constitution as part of its national law but nonetheless its inhabitants have enjoyed the fruits of freedom and liberties however it was only in 1998 that this jurisdiction has enacted Human Rights Act 1998 which explicitly states, among others, the rights and freedom accruing to each individuals. IV. Discussion With the foregoing as the background, it is posited that the human rights are not mere extensions of natural rights but rather human rights are positive conferment of statutory and legal rights which demands compulsory and mandatory compliance by each individual. If the theory that the human rights are considered extensions of natural rights is to be followed then it presupposes that natural rights are deemed self-executing without need of legislative imprimatur. However, as culled in the historical chronicle, all rights accruing to individuals resulted from enactments of the parliament or the authorized government functionary. A concrete example is the right to life. All creatures are entitled live and should not be killed as this is a natural right. However without any penal laws which define an act to be criminal in nature and therefore should be meted punishment commensurate to the act committed, then no person shall be convicted and made culpable for a grievous conduct. The sanctity of life although it is the law of nature cannot be given effect unless and until a positive law is enacted. So also, a fetus in a woman’s womb has the natural and inherent right to live and be born however if the woman choses to terminate life, then the natural rights of the fetus to live cannot be invoked as there is no law which recognizes the rights of the unborn. The freedom of choice is conferred upon the woman as the unborn fetus has not acquired any civil or legal personality as yet as it accrues only upon birth (Paton, 1979), thus the fetus is not yet considered a person pursuant to law and jurisprudence. The courts or state cannot similarly intervene on behalf of the unborn anchored on the fetus’ natural right to life as it would constitute as infringement or undue interference on the freedom of choice which may solely be exercised by the pregnant woman (Re F, 1990). With respect to civil liberties such as the right of suffrage and non-discrimination cannot likewise be exercised without the enabling laws recognizing such rights. It is beyond dispute that the right to vote accrued only to a select few. Indeed, the right to vote and chose who shall rule and govern are inherent rights but sans any parliamentary grant, it cannot be bestowed upon individuals. Women in this jurisdiction were not allowed to vote until the passage of Representation of the People Act 1918 when woman shall be entitled to be registered as a parliamentary elector for a constituency if she meets the qualifications of property ownership, age and mental capacity. Within the same year, women aged 21 may be voted upon as members of the parliament even as they were not yet allowed to vote by virtue of the enactment of the Parliament (Qualification of Women) Act 1918. So also, it the natural right of men and women to be treated equally and must be accorded the same respect and dignity. The attainment of the right of women to suffrage removed the discrimination as well as marked inequality when both genders were accorded the same rights and privileges under the Representation of the People (Equal Franchise) Act 1928. Men and women now stand on equal footing as they are now entitled to vote if they are 21 years old, regardless of property ownership. Prisoners convicted by final judgment were not allowed to vote under the Forfeiture Act 1870 however the right to vote accrues before final judgment or to those who were awaiting trial, fine defaulters and people found guilty for contempt of court. However, the denial of the right of suffrage to convicted felons in general was assailed before the European Court of Human Rights (ECHR) in 2004 by John Hirst. The ECHR ruled that blanket ban was discriminatory and breached the European Convention on Human Rights. It however declared that each nation can exercise its discretion to apply restrictions on who among the convicts may be allowed to vote. The human rights declaration equally proscribes discrimination by reason of creed, gender, race, disability and such other discriminatory actions. Every human being must be treated equally and one cannot be accorded favor while denying the same privilege to another human being. If a privilege or benefit is conferred over and above what is imposed by law then such right and privilege can no longer be withdrawn unilaterally. It could be gleaned that the primordial objective of the human rights is to restore the dignity of an individual and the protection of his rights against the coercive powers of the state as well as to safeguard his rights against the intrusion of fellowmen. Human rights as it is anchored in law connote justice and fairness. It equally involves freedom of speech, freedom of association and freedom of assembly. And, for persons accused of an offense, an accused has a right to due process, speedy and fair trial and to seek restitution or redress from a wrong. It cannot be denied that the human rights are moored on legal and political principles while natural rights are based on reason and divine belief. A theory is advanced that natural rights are endowed upon every human being who has absolute right over their persons notwithstanding the lack of positive or substantive laws where such rights may emanate. Natural rights presuppose that all individuals are free to do what he perceives to be right which cannot be curtailed or withheld by the government. On one hand, the human rights theory entails either the expansion of the rights of an individual or curtails the governmental powers and prerogatives to promote the general welfare. Given that the natural rights espouse inherent and inalienable dominion of an individual over his person thus no law may restrict the free exercise of these rights. Natural rights are thus described as the law of the universe that governments are without authority to disregard or set aside. It is said that the Universal Declaration of Human Rights is an attempt to merge human rights with natural rights as it merely codified or reduced into one compact instrument the natural rights which are perceived to be mere abstract principle. The preamble to the Universal Declaration of Human Rights defined inalienable rights to be the "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." It may be important to state that even the United States refer to Inalienable rights as those that protect life, liberty, and the in pursuit of happiness (United States Declaration of Independence,1776). Natural rights clearly include the right to life and liberty but as long as man is conferred with unmitigated power over oneself and remains motivated by self-interest then war or chaos is not far away. Thus, if human beings want peace in their midst then a legal structure must be constituted declaring the rights and obligations of each individual which extracts mutual commitment and responsibility. Consequently, if a person violates the law then a corresponding penalty is meted so that order may ensue. The exercise of a natural right that denigrate, abuse, or vilify another human being should not be permitted. Conclusion: John Locke (1632-1704) proposition that Life, Liberty and Estate are the three natural rights of humans. Life, according to Locke means that everybody is entitled to live once they are created. Liberty, he hypothesized is everyone’s entitlement to do anything they want so long as it doesn’t conflict with the first right. While Estate, he posit entitles all to own all they create or gain through gift or trade so long as it does not conflict with the first two rights. Natural right is the universal rights of man that are also considered unalienable since they are not conferred by man they are the natural consequence of being part of humanity. Human Rights emanated from the natural laws and should be considered its extension as conceived by John Locke. Human Rights focus on the quality that restores the dignity of man in relation to the natural laws. Laws that are created by state or man should not in any way conflict with the natural laws of man as indicated by John Locke but rather it should be harmonized and reconciled for the great good. References Bailii. Hirst v. The United Kingdom No. 2. Interim Resolution CM/ResDH(2009)1601. [online] Available from http://www.bailii.org/eu/cases/ECHR/2009/2260.html [Accessed 18 March 2011] British Library. Magna Carta 1215. [online] Available from http://www.law.gmu.edu/assets/files/academics/founders/MagnaCarta.pdf [Accessed 16 March 2011] Council of Europe. Convention for the Protection of Human Rights and Fundamental Freedoms as amended by Protocols No. 11 and No. 14. [online] Available from http://conventions.coe.int/treaty/en/Treaties/Html/005.htm [Accessed 18 March 2011] Europarat. Hirst v. The United Kingdom (No. 2) [2005] ECHR 681. [online] Available from http://www.coe.int/T/d/kommunikation_und_politische_forschung/presse_und_online_info/Presseinfos/P2004/20040330-GH-UK.asp [Accessed 18 March 2011] Guardian.co.uk. 2010. Prisoners to get the right to vote. [online] Available from http://www.guardian.co.uk/uk/2010/nov/02/prisoners-vote-european-court-human-rights [Accessed 18 March 2010] Lonang Institute. 2003-2011. Habeas Corpus Act 1679. [online] Available from http://www.lonang.com/exlibris/organic/1679-hca.htm [Accessed 18 March 2011] Paton v BPAS. [1979] 1 QB 276. Re F [1990] 2 AC 1 The Charters of Freedom. Declaration of Independence. 1776. [online] Available from http://www.archives.gov/exhibits/charters/declaration.html [Accessed 18 March 2011] United Kingdom. Act of Settlement (1700). 1700 c. 2 (Regnal. 12_and_13_Will_3). [online] Available from http://www.legislation.gov.uk/aep/Will3/12-13/2 [Accessed 16 March 2011] United Kingdom. Bill of Rights 1689. [online] Available from http://www.parliament.uk/about/living-heritage/evolutionofparliament/parliamentaryauthority/revolution/collections/billofrights/image-1/ [Accessed 16 March 2011] United Kingdom. Criminal Law Act 1967. 1967 c. 58. [online] Available from http://www.legislation.gov.uk/ukpga/1967/58/contents [Accessed 16 March 2011] United Kingdom. Defamation Act 1996. 1996 c. 31. [online] Available from http://www.legislation.gov.uk/ukpga/1996/31/contents [Accessed 16 March 2011] United Kingdom. Forfeiture Act 1870. 1870 c. 23 (Regnal. 33_and_34_Vict). [online] http://www.legislation.gov.uk/ukpga/Vict/33-34/23/contents [Accessed 16 March 2011] United Kingdom. Human Rights Act 1998. 1998 c. 42. [online] Available from http://www.legislation.gov.uk/ukpga/1998/42/contents [Accessed 16 March 2011] United Kingdom. Human Rights Act 1998. 1998 c. 42SCHEDULE 1. [online] Available from http://www.legislation.gov.uk/ukpga/1998/42/schedule/1 [Accessed 16 March 2011] United Kingdom. Parliament Act 1911. 1911 c. 13 (Regnal. 1_and_2_Geo_5). [online] Available from http://www.legislation.gov.uk/ukpga/Geo5/1-2/13/contents [Accessed 16 March 2011] United Kingdom. Parliament Act 1949. 1949 c. 103 (Regnal. 12_13_and_14_Geo_6). [online] Available from http://www.legislation.gov.uk/ukpga/Geo6/12-13-14/103/contents [Accessed 16 March 2011] United Kingdom. Parliament (Qualification of Women) Act 1918. 1918 c. 47 (Regnal. 8_and_9_Geo_5). [online] Available from http://www.legislation.gov.uk/ukpga/Geo5/8-9/47 [Accessed 16 March 2011] United Kingdom. Representation of the People Act 1918. [online] Available from http://www.archive.org/stream/representationof00frasrich/representationof00frasrich_djvu.txt [Accessed 16 March 2011] United Kingdom. Representation of the People (Equal Franchise) Act 1928. United Kingdom. Statute of Westminster 1931. 1931 c. 4 (Regnal. 22_and_23_Geo_5). [online] Available from http://www.legislation.gov.uk/ukpga/Geo5/22-23/4/contents [Accessed 16 March 2011] United Nations. The Universal Declaration of Human Rights. 1948. [online] Available from http://www.un.org/en/documents/udhr/index.shtml [Accessed 16 March 2011] Read More