Raed Jamal GHANEM: Epic Milestones in the History of Human Rights
Between the Middle Ages and the Age of Enlightenment in Europe
After the fall of the Western Roman Empire and the collapse of the central authority that imposed a unified legal system, a group of legal systems were created in different regions with different features. One of these system’s goals was to protect individuals and prevent abusive behaviour. In addition to the protection of individuals, the domestic legal systems included the protection of some rights, including those of women and family, the right to litigation and the right to compensation for personal injury. () With the end of the eleventh century and the beginning of the twelfth century, the establishment of some European universities and the study of law as a specialized branch of science led to the development of law in general and its reflection on the rights of individuals in a more specific and strict way. Later, Europe witnessed important milestones (such as Magna Carta in 1215, The Golden Bull in 1222, and Bill of Rights in1689) in the development of human rights, in terms of the concept and manner of dealing with those rights. These milestones marked the beginning of an important historical period, which was later known as the Enlightenment.
There is no doubt about the importance of returning to that historical period to assess the reality of human rights today in Europe, and evaluate the tools and factors that protect these rights after those centuries, which carried on the task of protecting the same values that were created in the Age of Enlightenment, establishing a common frame of reference for this evaluation process (such as the European Convention on Human Rights in1950 (ECHR), and the European Court of Human Rights).
Towards the Consolidation of Human Rights:
During Enlightenment, some events and movements indicated the beginning of the growth of the revolutionary awakening aimed at securing basic human rights and their guarantees. On the one hand, there was a remarkable development pointing to the legalization of rights and freedoms in Europe. Some of the most important events included:
1. Magna Carta Libertatum (1215): it was a royal charter of rights (‘the Great Charter of Freedoms’) adopted by King John of England, on the 15th of June, 1215. It was first drafted by Archbishop of Canterbury Stephen Langton to make peace between the unpopular King and a group of rebel barons. Moreover, it promised the protection of church rights, protection for the barons from illegal imprisonment, access to swift justice, and limitations on feudal payments to the Crown, to be implemented through a council of 25 barons. As neither side stood behind their commitments, the charter was annulled by Pope Innocent III, leading to the First Barons’ War. Regardless of its annulment, this document received great attention later, especially in the field of law. Some of the articles of the Universal Declaration of Human Rights (UDHR) in 1948 were inspired by this Charter.
2. The Golden Bull (1222): it was an edict, issued by Andrew II of Hungary. King Andrew II was forced by his nobles to accept the Bull, which was one of the first examples of constitutional limits being placed on the powers of a European monarch. The law established the rights of the Hungarian nobility, including the right to disobey the King when he acted contrary to the law (ius resistendi). The nobles and the church were freed from all taxes. They could not be forced to wear a war outside of Hungary and were not obliged to finance it either. This was also a historically important document because it set down the principles of equality already at that time.
3. The Warsaw Confederation: signed on 28 January 1573 by the Polish National Assembly in Warsaw. It was one of the first European acts granting religious freedoms. It was an important development in the history of Poland and of Lithuania that extended religious tolerance to nobility and free persons within the Polish–Lithuanian Commonwealth. The document is considered to be the formal beginning of religious freedom. Although, it did not prevent all conflict based on religion, it did make the Commonwealth much safer and more tolerant place than most of contemporaneous in Europe, especially during the subsequent Thirty Years' War. ()
4. The Bill of Rights (1689): It is an original Act of the English Parliament and has been in the custody of Parliament since its creation. The Bill firmly established the principles of frequent parliaments, free elections, and freedom of speech within the Parliament – known today as ‘Parliamentary Privilege’. It also included the provision of prohibiting taxation without the Parliament's agreement, the freedom from government interference, the right to petition and the courts' fair treatment of citizens. The main principles of the Bill of Rights are still in force today – and is cited as authority in legal cases -. It was used as a model for the US Bill of Rights in 1789. Its influence can also be traced in other human rights documents, such as the UDHR and the ECHR.
On the other hand, the role of some philosophers, thinkers and political writers in this historical period cannot be overlooked. Their writings focused on the importance of the citizen, the elevation and protection of their rights. The concept of the ‘citizen’ appeared at the beginning of the seventeenth century, in the writings of Hobbes() (1588-1679). Hobbes considered sovereignty and authority to be based on a contract. This contract is not between the king and his subjects, but between individuals who decided to have a king. And the king, instead of limiting sovereignty, bases it on the contract. Under this contract, the state must defend the interests of the citizen who does not give up his rights except for the sake of protection, where the state loses the reason for its existence if it does not secure security and does not respect obedience.
Following Hobbes, John Locke (1632–1704) was among the most prominent political theorists. Locke defended the argument in the Two Treatises of Government (published in 1688) that men are free and equal by nature. He argued that people have rights regardless of the laws of any particular society. These rights are: the right to life, liberty, and property. As part of the rationale for understanding legitimate democratic government, Locke used the argument that men are inherently free and equal as a consequence of a social contract in which individuals in the state of nature conditionally pass some of their rights to the government. ()
Jean-Jacques Rousseau (1712-1778) asserted that gave citizens have the right to revolt against governments, when their decisions did not respond to the rights of the citizens. In the theory of the social contract, the following was stated: “If the rulers and legislators do not adapt their decisions to the opinion of the people, then the people have the right in decoding the contract." Moreover, Rousseau emphasized the principle of social equality because it leads to social cohesion.
Human Rights and the Enlightenment
The Enlightenment was not a coincidence, but rather one of the most important results of the scientific and philosophical ‘footprints’ of such great thinkers of the era as Isaac Newton, Rene Descartes, Immanuel Kant, Montesquieu, and many others. French historians have linked the beginning of the Enlightenment with the date of the death of Louis XIV, 1715, until the outbreak of the French Revolution, 1789 – but this chronology is not undisputed.
Influenced by the opinions of European writers and philosophers, America was witnessing the signs of the launch of the revolution against British colonialism, later known as after the American Revolution 1765_1783, the most important result of which was the liberation of the United States from the authority of the British Crown and the development of a Constitution for the United States and the election of judicial and legislative authority. ()
By some influence from the American Revolution and the accompanying constitutional and legal movements and reforms, in addition to the factors mentioned previously, especially concerning European thinkers, the French Revolution of 1789 erupted, which constituted an important milestone in the history of the development of human rights and public freedoms in general. One of its results was the, which later constituted a frame of reference for many documents and declarations dealing with human rights, e.g. the 1948 UDHR.
We can summarize some of the important and influential milestones in the development of human rights during this important period as follows:
1. French Declaration of the Rights of Men and Citizen in 1789: It is one of the basic documents that support human rights and freedoms. It contains a set of principles inspired by the French Revolution and was adopted by the National Assembly as a prelude to the Constitution of 1791. This declaration was based on a group of sources that were the products of thinkers and philosophers in the Enlightenment, such as Montesquieu, who is considered to be the father of the theory of separation of powers. In addition, Jean-Jacques Rousseau, Voltaire and other thinkers, and some other declarations of rights outside Europe, such as the Virginia Declaration of Rights in 1776. ()According to the majority academic view, this declaration is consistent with the spirit of "secular natural law", which does not base itself on religious doctrine or authority, in contrast with traditional natural law theory, which does().
The importance of this declaration is that it is directed to all human beings, not only to the French people, and it also emphasized the natural rights of human beings (freedom, property, security, and resistance to injustice).
2. The Napoleonic Code (1804): Napoleon's Code (simply referred to as the Civil Code) is the French Civil Code, was established by the French Consulate in 1804 and is still in force, although it has sometimes been amended. It was drawn up by a committee of four famous jurists and entered into force on 21 March 1804. The law was a significant step in replacing the previous collection of feudal rules, with a focus on a clearly written and functional law. Historian Robert Holtman finds this to be one of the few documents that have shaped the world. The Napoleonic Code was not the first legal code to be introduced on civil law, but it was the first modern legal code to be implemented in most European countries and had a significant influence on developing countries in the field of law.
The value of this statute, while not perfect, derives from its impressive growth in dealing with rights and freedoms, such as the abolition of birth-based privileges and the establishment of freedom of religion.
3. The British Reform Acts (I and II): In 1832, the Parliament passed a law changing the British electoral system. It was known as the Great Reform Act. This was a response to many years of people criticizing the electoral system as unfair. For example, there were constituencies with only a handful of voters that elected two MPs to Parliament. In these “rotten boroughs”, with few voters and no secret ballot, it was easy for candidates to buy votes.
However, this reform did not reach the desired results, especially as it explicitly excluded women from the right to vote, and only extended to a certain group of men. In 1867, the Second Reform Act came, which gave the right to vote for large groups of men until it finally came to grant this right to every head of a family. Later, these two reforms were supported by the People's Representation Act in 1884, which significantly expanded voter turnout, without affecting women's rights. ()
Despite the narrow scope of these reforms, they bore a great impact on the political rights of the citizen, especially the right to vote, which is considered one of the most important tools of political practice().
Most of the medieval or Enlightenment-era events mentioned did not specify human rights as a direct objective. Rather, some of them were aimed at protecting the interests of certain groups, or at least this is ended up being their result. Although the reality of human rights and freedoms during that period did not rise to the level commensurate with the intellectual and philosophical value of that era, we cannot overlook the importance of the change that affected the concept of human rights in terms of legal and intellectual establishing and fortify it with the base of recognition from the authority and society. Today, those values face many challenges that resulted from the development of human societies, the lack of resources and the proliferation of armed conflicts, which leads to weak interaction and cooperation at the international level in the face of violations of human rights. This is what is expressed in some of the recent intellectual and philosophical writings that revolve around the future of human rights.()
It also worth noting that the intellectual legacy of the Age of Enlightenment has preserved its presence in the process of human rights development in Europe, which passed through many milestones that expressed a more conscious development and more adapted to the changes, starting with the European Convention on Human Rights in 1950, through the founding of the European Union in 1993, until the Charter of Fundamental Rights of the European Union in 2000.
The values associated with respect for human rights and freedoms crystallized during the Enlightenment still have an impact and most recently have caused a shift in viewing these values not only as individual needs, but as collective necessities, taking on a societal character. The consolidation of the universal character of human rights, coupled with the particular needs of certain societies shape contemporary constitutional discourse, adding to it the regional specificities of certain supra- and transnational legal orders as the EU, bringing about their own milestones in the protection of human rights.
()Paul Gordon Lauren, Edited by Dinah Shelton, The Foundations of Justice and Human Rights in Early Legal Texts and Thought, The Oxford Handbook of International Human Rights Law, 2013. p. 175-177. () Daniel Stone, The Polish-Lithuanian State, 1386–1795, Seattle and London: University of Washington Press, 2001. ( ) Jean Touchard and others, The History of Political Thought, translated by Ali Makled, Beirut, Dar Al-Alamiya, 1987, p. 262. ()Tuckness, Alex, "Locke’s Political Philosophy", The Stanford Encyclopedia of Philosophy (Winter 2020 Edition), Edward N. Zalta ed. ()Revolutionary War, History.com Editors, https://www.history.com/topics/american-revolution/american-revolution-history. Access Date 06/01/2021, Publisher A&E Television Networks Last Updated September 3, 2019. ()Paul Gordon Lauren. P. 187-188. ()Merryman, John Henry; Perdomo, Rogelio Perez: The civil law tradition: an introduction to the legal system of Europe and Latin America. Stanford University Press (2007). p. 16 ()Glenn Everett, The Reform Acts, http://www.victorianweb.org/history/hist2.html. Access date 07/01/2021. ()Jonathan Parry described this as a "borough franchise revolution". Jonathan Parry. The Rise and Fall of Liberal Government in Victorian Britain, Yale University Press, 1996.p. 221. ( ) Yuval N Harari, Homo Deus : a brief history of tomorrow, New York, NY : Harper, an imprint of Harper Collins Publishers, 2017. Chapter3.
Raed Jamal GHANEM a first-year doctoral student at the Department of Legal Theory and Legal Sociology, Faculty of Law, University of Miskolc. I fulfilled my legal studies in Syria at Damascus University, then I graduated from Public Law, LLM at Damascus University.