December - 2015 Odisha Review

Origins and Growth of Human Rights

Dr. Nityananda Paul

Suchitra Mishra

The new phrase “Human Rights” was adopted political rights today, were available to a section
only in the present century from the expression of people5.
known as “Natural Rights” or “Rights of the man”1. HISTORICAL EVALUATION OF
The term “Human Rights” is comparatively recent HUMAN RIGHTS
in origin, but the idea of Human Rights is as old
The origin of human rights is traced, by
as the history of human civilization2. Introducing
some scholars, back to the times of ancient
the concept of “Human Rights” it can be said that
Greeks. The fact that the human rights were
“Human Rights” is a twentieth century name for
recognized as natural rights of man is illustrated
what has been traditionally known as natural rights
by a Greek play Antigone. In this play, Sophocies
or in more exhilerating phrase, the rights of man3. describes that Antigone’s brother, while he was
It is a basic principle of jurisprudence that every rebelling against the king, was killed and his burial
Right has a correlative Duty and every Duty has was prohibited by the king Creon. In defiance of
a correlative Right. But it is subject to certain the order Antigone buried her brother. When she
exceptions in the sense that a person may have a was arrested for violating the order she pleaded
Right but there may not be an enforceable that she had acted in accordance with the
corresponding Duty. “Right” is an interest “immutable, unwritten laws of heaven” which even
recognized and protected by moral or legal rules. the king could not override6.
It is an interest the violation of which would be a
In philosophy the development of the
legal wrong4". Therefore the rights of a man had notion of natural rights of man was contributed
a place in almost all the ancient civilizations of the by the philosophers. They first developed natural
world. law theory and by virtue of it they explained the
In the Middle East, the Babylonian laws, nature of human rights i.e., rights which every
the Assyrian laws and the little laws were human being possesses by virtue of being human.
provided for the protection of the rights of man. However, it may be noted that the citizens
In India, the Dharma of the Vedic period and in of the Greek city States enjoyed some basic rights
China, the jurisprudence of LaoTze and Confucius even before the formulation of natural law theory
protected rights. In the West, a number of rights, by the philosophers. These were in particular:
bearing some semblance of what we call civil and (i) the right to freedom of speech (Isdogoria),

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(ii) the right to equality before law (Isonomia), (natural law) which enabled them to humanize
and (iii) the right to equal respect for all (Isotimia)7. these rules in such a way that a man of common
The philosophers formulated the theory sense and good faith could approve them as just
of natural law after the break down of the Greek and reasonable11.
City States8. The central notion of the philosophy Roman law was divided into two
was that the principles of natural law were universal categories of rules ‘jus civil’ or Roman Civil law
in their nature. Their application was not limited dealing with citizens, things and actions and ‘Jus
to any class of persons of certain State; rather it Gentium’ or the law of non-citizens, which signifies
applied to everybody everywhere in the world. It the rights of those who were not the citizens of
was the embodiment of that higher principle of Rome and they referred to those rights to which
justice which could be discovered by human men were entitled in general. It also referred to
reason and as such were superior to positive law. the rules of international law at the same time.
The natural rights of man being its embodiment The social contract theory
were not the particular privileges of citizens of
certain state, but something to which every human The doctrine of social contract was
being, everywhere, was, entitled in virtue of the closely linked with the theory of natural law
simple fact of being human and rational9. because the basis upon which the natural law
theories were formulated was the same for the
They set forth further that men could social contract doctrine also12.This doctrine
comprehend and obey this law of nature because becomes popular during 16th and 17th century
of their common possession of reason and through the writings of such political philosophers
capacity to develop and attain virtue. In this way as Thomas Hobbes (1558-1679), John Locke
the philosophers were able to preach the idea of (1632 – 1704) and Jean Jacques Rousseau
universal brotherhood of mankind and laid stress (1719-1778).
upon the equality and freedom for all.
In general, they took the help of the notion
The formulation of natural law was best of social contract to explain the relationship
suited to the Roman temperament for they, in between individual and society. Initially, the social
principle, believed that man should improve himself contract writers claimed that a superior power,
both rationally and morally. Writing about natural rather manual or legal was established in
law, Cicero (106-43) B.C., like philosophers, laid pursuance of the social contract under which the
emphasis upon the universal application, people collectively undertook to obey the
unchanging and everlasting. It is not a sin to try to commands of such superior power so long it
alter this law, nor is it allowable to attempt to governed them in their common interest and kept
repeal any part of it and it is impossible to abolish itself within the terms of contract.
it entirely. We cannot be freed from its obligation
by senate or people …………… And there will However, in the 17 th century, the
not be different law at Rome and at Athens or protagonists of social contract theory, particularly
different laws now and in the future, but one Rousseau, undertook to explain that state was an
eternal and unchangeable law will be valid for all artifact, an artificial creation of individuals, or the
nations and for all times”10. Many principles of result of the social contract. Rousseau began with
‘Jus Gentium’ were adopted from ‘Jus natural’ the state of nature, in which man was free and

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December - 2015 Odisha Review

independent in all respects. From this state of principles of law to be derived from reason. But
nature according to him there emerged a political they did not go in quest of making the human
society by the separate acts of individuals, personality as the main concern of law and social
whereby they undertook with one another to set life.
up government which would be responsible to
Thomas Aquinas, like Aristotle, justified
promote their common interests. The political
the existence of the practice of slavery16. Thus
society, so created would, by majority will,
the ‘man’ was dispensed with as central notion of
proceed to appoint Governors who would govern
mediaeval philosophy of law. Much attention was
in accordance with the terms of contract or the
focused on the development of the principle of
instrument of trust or an act of delegation by which
the sovereignty of sate rather than on the
he was so empowered. The Governor was to act
development of respects for human qualities.
on the behalf of the people thus protecting their
These principles led to the international protection
general interests and respecting their natural rights.
of human rights17.
The violation of the terms of social contract on
the part of the Governor would justify not only its Again, a set-back was also caused during
th
disobedience, but also rebellion against it13. 16 century to the development of the concept
of natural rights by Machiavelli’s teachings. He
The upholders of the social contract
was opposed to the concept of natural law and
theory considered human rights as the natural
supported absolute monarchy. His philosophy was
rights for the reason that human rights are based
not based on any mystical thought such as that of
upon the contract concluded by the people with
natural law; rather, it was ‘here-and-now
the state. They explained that when men entered
philosophy’. For him human nature was bad and
into contract to form political society, they
selfish which necessitated the establishment of
renounced some of their natural rights which had
state to curb and crush the anti social elements
previously been enjoyed by them in their free state
existing in human mind.
of nature but certain basic rights, such as; the right
to life, freedom and equality were preserved by Influence of American Revolution:
them. These rights so preserves constituted their American Revolution originated in the colonial
‘natural and inalienable right’ which must be revolt of 1763. There were many factors which
respected by the state or Governor. Thus is effect contributed towards the rise of this revolt, for
one of the purposes of the social contract was to instance, the growing importance of the notion of
preserve the natural inalienable rights to men and natural rights, teachings of the writers of social
at the same time to prevent the state from contract doctrine, the British Bill of Right of
interfering with the exercise of those rights by the 168918, and the coercive actions of George 11
people14. In this way the concept of inalienable, (1760-1820) and his predecessors.
natural and imprescriptibly nature of human rights
The American notion of independence,
was established.
and their determination to overthrow the authority
The Middle Ages: In the Middle Ages, of the imperial tyrannical government had led them
the scholastic philosophers15 like Abelard (1079 to make the Declaration of Independence on July
– 1142) and Thomas Aquinas (1224-1274), the 4, 1776. This famous document was drafted by
most original thinkers of their times laid stress Thomas Jefferson. It mounted attack not only
upon the concept of natural law as the higher against the divine right of the king to rule, but also

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Odisha Review December - 2015

against a government which did not reflect the person within its jurisdiction the legal protection
will of the people. The document says: of the laws. The 15th Amendment lies down that
We hold these truths to be self-evident the citizen’s right to vote shall not be denied or
that all men are created equal, that they are abridged by the United States or may state on
endowed by their creator, with certain inalienable the grounds of race, colour or previous condition
rights, that among these are life, liberty and pursuit of servitude, and the 19th Amendment was added
of happiness. That to secure these rights in 1960 providing that this right shall not be
Governments are instituted among men deriving abridged or denied.
their just powers from the consent of the Impact of French Revolution:
governed, that whenever any from of Government
becomes destructive of these ends, it is the right The French Revolution was based upon
of the people to abolish it and institute new those principles which were set in motion by the
Government19. English and American Revolution. It differed
mainly in that it was basically the result of
Thus, Americans made their claim for economic and social inequalities and injustices of
independence on the basis of inalienable rights of the French ancient regime. These inequalities were
man, popular sovereignty and the right of conspicuous not only among the third Estate
revolution, but at the time of drafting the (lower classes), but also in the first Estate (clergy)
constitution in 1787 they did not include a Bill of and in the second Estate (clergy) and in the third
Rights for them. They did it in 1781 by a spiting Estate (nobility). It had caused the greatest amount
ten amendments to the constitution. These of concern among the writers20, who were
amendments are known as Bill of Rights and form
apparently influenced by the teachings of
part of their constitution. Again Amendments from
Rousseau. They enthusiastically claimed that it
13 known as ‘Civil war Amendments were
marked the dawn of new age for the right reason
adopted at the end of the civil war. Since the Bill
and natural and imprescriptibly right to life, liberty
of Right was not applicable to the newly freed
and the pursuit of happiness. The government, in
Negroes, these amendments extended the civil
their opinion, must preserve and safeguard these
right liberties to them and imposed obligation upon
rights and if it fails to do so it has no right to remain
the state to respect these rights.These
amendments may be discussed as follows: in existence.

The 13th Amendment prohibits slavery However, it was not the writers or
and involuntary servitude, the 14th Amendment philosophers who had influenced the course of
widens the base of American Citizenship by events, but it was the covering of the French
conferring citizenship on all persons born or Estates General which produced the desired
naturalized in the United States. They became result. As a matter of fact, it was on 17th June
entitled to the citizenship of United State as well 1789, when Third Estate in defiance of Louis XVI
as of the states in which they reside. It is further proclaimed itself the National Assembly and three
provided that States shall neither make nor enforce days later they took the famous the Tennis Court
any law which shall abridge the privileges and Oath never to separate until the constitution of
immunities of citizens of the United States, nor the kingdom shall be established. It was joined
deprive any person of life, liberty or property by more than half of the clerical deputies and 47
without due process of law nor deny to any nobles21.

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December - 2015 Odisha Review

A list of inalienable rights of free citizens reality that is to say positively law as it was
was prepared which was proclaimed as the subsequently to be established”24.
“Declaration of the rights of Man and of the Marxist philosophers saw in the State the
citizen.” In it the philosophical teachings of highest and ultimate value. In the words of Ritchie,
Rousseau permeated to its full extent. This “the person with rights and duties is the product
document was of the rank of the English Magna of society and the rights of individual must
Carta and the Bill of Rights in the constitution of therefore be judged from the point of view of the
the United States of America22. society as a whole and not from the point of view
The proclamation of the Declaration of of the individual”25.
the Right of Man and of the Citizen was annexed The argument that the human rights
to the constitution when it was adopted in 1791. evolve out of social needs and prevailing social
In the words of Gaius Ezejiofor, “this completed conditions is further supported and strengthened
one of the most crucial epochs in the development by the fact that as a result of industrial revolution
of human rights. Before the American and French wealth increased at a very rapid speed and
Revolution it had what was for all practical became concentrated in the hand of few
purposes only a philosophical appeal, but after individuals. Along with it there arose several
the declaration and the constitutional Bill of Rights problems, such as, that of sanitation, health,
the concept assumed a positive importance23. sickness, poverty, diseases and ignorance which
Opposition to the Concept of Natural rights: were difficult to solve. It led to the rise of feeling
that national wealth should not be concentrated
The notion of natural rights as having been in the hand of few individuals to the exclusion of a
arisen under the influence of natural law theory large number of individuals who suffer under
has been opposed by various authors. It has been poverty, disease and ignorance. This in turn
argued that human rights are not the product of resulted in the recognition of certain new
the so-called, natural law theory; rather, they are economic, social and cultural rights as natural
the product of the needs of society and its rights of man26.
prevailing social conditions.
Universalization of Human Rights:
Imer Szabo, for instance, has opposed
the idea of explaining the development of human Although at the end of First World War
rights on the basis of natural law theory, he some attempts on modest-level were made
maintains that: through the Treaty of Versailles to promote and
universalize human rights but it met with no
“Law founded on reason is pure fiction, success. Since the judicial conscience of the
as is the assumed existence of a social contract. civilized world was very much in the favour of
On the other hand, the economic development, safeguarding the rights of individuals against its
and correlatively, the political development violation by states, it was consistently realized that
specific to the 15th and 16th centuries is by no the rights of individuals must be universalized so
means a fiction since it corresponds to the real that it may be guarded against its violation by
development of society. On this account, the one’s own state. Influenced by such desires the
relations between natural law and positive law institute of international law initiated measures to
appeared to be the relations between needs and study and formulate the human rights provisions.

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Odisha Review December - 2015

This institute of international laws was a private — To recognize that the equality as
organization whose members were elected from contemplated herein is not to, be nominal,
the authorities on international law in Europe, but effective. It excludes all discrimination
America and Asia. Its pronouncements had no direct and indirect33.
validity except the prestige of the members which
Thus, the proclamation states in bold and
they held. Its chief aim was to extend to the entire
unequivocal terms the rights of human beings,
world international recognition of the rights of man.
without distinction of nationality, sex. race,
Accordingly a proclamation of the right of man
language and religion, to the equal right to life,
was issued by it in 1929.27 In all, six articles were
adopted which prescribed the duties of every state: liberty and property together with all the subsidiary
rights essential to the enjoyment of these
— To recognize the equal rights of every fundamental rights. It aims not merely to assure
individual to life, liberty and property and to to individuals their international rights, but it aims
accord to all within its territory the full and to impose on all nations a standard of conduct
entire protection of this right without towards all men including their own nationals.
distinction as to nationality, sex, race, Such a revolutionary document cannot fail,
language or religion28. however, to exert an influence on the evolution of
— To recognize the right of every individual international law. It marks a new era which is more
both to the free use of the language of his concerned with the interests and rights of
choice and to the teaching of such sovereign individuals than with the rights of
language29. sovereign states”34.
— To recognize the right of every individual to Another milestone in the universalisation
the free practice, both public and private, of of human right, of course, in disguise was
every faith, religion or belief, provided that oppressive and brutal practices adopted by Nazi
the said practice shall not be incompatible regime in Germany. The individuals on the ground
with public order and good morals30. of their race or religion were subjected to
— To recognize that no motive based directly persecution, tyranny and brutality. They were
or indirectly on distinction of sex, race, deprived of their civil and political rights.
language or religion, empowers states to It caused global concern for the
refuse to any of their nationals, private and protection and promotion of human rights
public rights, especially admission to universally, and with the progress of the Second
establishments of public institution, and the World War deep concern was shown for the
exercise of the different economic activities, international recognition of human rights and for
and of professions and industries31. establishment of world organization for the
— To recognize that except for motives based protection and promotion of human rights. It was
upon its general legislation, on state, shall believed that no permanent peace could be
have right to withdraw its nationality from established without securing international
those whom for reasons of sex, race, safeguards for human rights and fundamental
language or religion, it should not deprive of freedom. President Roosevelt took the lead in the
the guarantees contemplated in this matter and in his message to Congress on January
proclamations32. 6, 1941, he referred to the four essential human

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December - 2015 Odisha Review

freedoms to which he looked forward as the and rights to being which 30 nations committed
foundation of a future world – for war guidance and achievements”38.
— Freedom of Speech and expression. The above declaration of the United
— Freedom of every person to worship God Nations was affirmed by the three powerful
in his own way. nations (United States, Soviet Union and Great
Britain) in their conference of March 3, 1943. In
Although the list of rights herein described the pursuit of internationalization of human rights
is not very exhaustive but still it had exercised the International Labour Organization and other
immense influence on the movement of human private organizations played crucial and
rights35. constructive role in the development of concensus
The British Prime Minister, Mr. Winston of world community in this respect. The
S. Churchill was equally concerned with the Philadelphia declaration of the International
violation of human rights and racial persecution. Labour Organization at its 26th Session adopted,
He proclaimed that racial persecution would come inter alia, the following resolution:
to an end with the end of Second World War and “All human beings, irrespective of race,
human rights would be promoted. creed or sex, have the right to pursue both their
The Atlantic Charter : material well being and their spiritual development
The Prime Minister Mr. Winston S. in conditions of freedom and dignity of economic
Churchill and the President of the United States security and equal opportunity.”
Mr. Franklin D. Roosevelt had met at the sea and Jurists of high repute, professor Hersch
issued a social Declaration on August 1944 Lauterpacht, once professor at Cambridge
known as the Atlantic Charter. Through this University had lent their support for the formation
Declaration that two leaders deemed it right to and implementation of universal human rights. In
make known certain common principles in the fact, professor Lauterpacht prepared a draft of
national policies of their respective countries on ‘International Bill of rights of Man’ and suggested
which they use the hopes for a better future for for its acceptance by the United Nations as a part
the world36. It was agreed among other things of the fundamental constitution of the world
that they respect the right of all people to choose community39.
the form of government under which they will live,
and they wish to sovereign rights and self- In the circumstances it was not
government who have been forcibly deprived of unexpected that the question of internationalization
them rather the final destruction of the Nazi of human rights received adequate attention of
Tyranny, dwelling in safety within their own world powers at Dumbarton Oaks Conference
boundaries, and which will afford assurance that of 1944, where it was resolved that with a view
all the men in all the lands may live out their lives to the creation of conditions of stability and well
in freedom without fear and want37.In the editorial being which are necessary for the peaceful and
comment, L.H. Woolsey asserted that: friendly relations among nations, the organizations
should facilitate solutions of international
“We have, therefore, in the Atlantic economic, social and other humanitarian problems
Charter a statement of principles and in the and promote respect for human rights and
Declaration a further statement of human freedoms fundamental freedoms. Responsibility for the
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Odisha Review December - 2015

discharge of this function should be vested in the References :

General Assembly and in the Economic and Social 1. See Attar Chand,Politics of Human Rights and
Council40. Civil Liberties – A Global Survey, (1985) p.45.
Finally, it was the San Francisco 2. See Kanan Gahrana, “ Human Rights: A
Conference held from 25th April to 26th June 1945 Conceptual Perspective’ Indian Journal of
International Law, Vol. 29, Nos. 3 and 4, July-Dec.
at which the Charter of the United Nations had
1989, p-367.
emerged incorporating numerous provisions
providing for promoting and encouraging respect 3. Ibid., p.22
for human rights and fundamental freedoms for 4. Xv. Z AIR, 1999 SC 495
all without distinction race of sex, language, or 5. See Kanan Gahrana, Op. cit., p.371
religion41. 6. Sophocles: Antigone “The unwritten, unchanging
The General Assembly has been assigned laws of the gods”.
with the duty of initiating studies and making 7. Gaius Ezejio for Protection of Human Rights
recommendations for the purpose of assisting in Under the Law, London, Butter Worth, 1964. p3.
the realization of human rights and fundamental 8. Ibid.
freedoms42. The Economic and Social Council is 9. Cranston,. M., Human Rights Today, 1962, p. 9
authorized to make recommendations to the
10. De Republic, III, xxii, 33,quoted Ind’ Entreves,
General Assembly, to the Members of the United Natural Law, 1960, PP. 20-21.
Nations and to the concerned Specialized
11. Swain, J.E., History of World Civilization, 1947,
agencies for the propose of promoting respect pp. 172-173., It may be noted here with concern
for and observance of, human rights and that in the Graeco-Roman system of thoughts,
fundamental freedoms for all43. The Economic and particularly in the teachings of Aristotle the
Social Council is further empowered to prepare slavery was recognized as valid practice-Aristotle,
a draft convention for submission to the General politics, Book one.
Assembly44, and to set up commission for the 12. Seed Entreves. Natural Law (1960), p. 56.
promotion of human rights45 Ibid, Article 13 (1) 13. John Locke, Civil Government, Book II.
(b).
14. See In general Imre Szabo. supra, n. 16. pp. 13-15
The Economic and Social Council 15. Scholastic Philosophy was the most remarkable
constituted the Human Rights commission in its cultural development of the Middle Ages. ‘It was
first session with the responsibility, inter alia, to a combination of Augustiniam theology and
formulate an International Bill of Right. Aristotelian logic- an attempted union of
revelation and reason in one Philosophy-Supra,
The Universal Declaration of Human n. 13. p. 325.
Rights was adopted by the General Assembly on 16. Swain, J.E., A. History of World Civilization, 1947,
December 10, 1948, which formed the basis for pp. 172-173., It may be noted here with concern
the preparation of other documents on human that in the Graeco-Roman system of thoughts,
rights. The most prominent among them are the particularly in the teachings of Aristotle the
slavery was recognized as valid practice-Aristotle,
International Covenant on Economic, Social and
politics, Book one.
Cultural Rights, the International Covenant on Civil
and Political Rights and the Universal Declaration 17. Imre Szabo, “Historical Foundation of Human
Rights, Vol. I, English Ed., By Philip Alston.,
of Human Rights.
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December - 2015 Odisha Review

18. British Bill of Rights of, 1689 established the idea 38. Ibid, p. 192
of representative government formally and
39. Ibid.
became a charter of library for England.
40. These include the United States, Russia, China,
19. Friendrich and Mc. Closkey. From the Declaration
the British Common Wealth of Nations and India,
of Independence to the Constitution. 1954. p. 3
the eight conquered states of Europe and nine
quoted in supra, n. 7, pp. 6, 7.
Central American and Caribbean Republics. To
20. Fergusson and Brun, A Survey of European these Brazil, Mexico, Ethiopia and the Philippines
Civilization, pp. 565-612; Martin, French Liberal Common-wealth have since been added, see
thought in the 18th Century. (1942), 36 American Journal of International Law,
p. 626 supra n. 9.
21. Swain J.E., Supra n. 13, p. 473.
41. Editorial Comment by L. H. Woolsey. Ibid, p. 626.
22. Ibid., p. 475
42. Gaius Ezejiofor,Protection of Human Rights Under
23. Gaius Ezejiofor, Supra n. 7, p. 10.
the Law, London, Butter worth, 1964. p. 55.
24. Imre Szabo, Supra, n. 16. p. 15.
43. U.N.C.I.O., Vol. 3 p. 690: Dumbarton Oaks
25. Ritchie, Natural Rights, (1898), pp. 101-102. Conference was held in two phases. In first phase
26. Bean and Peters, Social Principles and the (21 August-28th September), representatives of
Democratic State (1958), p. 104 the United States, Soviet Union and United
Kingdom participated. In the second phase (29th
27. See, (1941) 35 AJIL pp. 663-665 September-7th October) representatives of the
28. Article I United States, China and United Kingdom
participated. They agreed on number of proposals
29. Article III known as the Dumbarton Oaks Proposals, See
30. Article II U.N.Y.B.. 1946, pp.4-9.

31. Article IV 44. Charter of United Nations, Article 1(3)

32. Article VI
33. Article V
34. Philip Marshall Brown (1930) 24 AJIL, p. 127
35. (1941), 35 American Journal of International Law,
p. 662
36. Ibid, p. 192 Dr. Nityananda Paul. At/Po- Khuruntia, Via- Nalagaja,
Dist- Mayurbhanj -757073.
37. (1941), 35 American Journal of International Law,
P.662. Suchitra Mishra, Mahanadi Vihar, Cuttack.

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