Philosophy of Law: A Very Short Introduction by Raymond Wacks

Author:Raymond Wacks
Language: eng
Format: epub, pdf
Publisher: OUP Oxford
Published: 2014-07-14T16:00:00+00:00

7. Nelson Mandela with the author soon after the former South African president’s release from 27 years of imprisonment. A trained lawyer, Mandela’s dedication to the overthrow of apartheid made him an international symbol of the struggle against injustice, and a champion of the establishment of liberty and equality under law

Constitutional change has been wrought through the strength of legal and moral argument based on the relatively uncomplicated concept of human equality.

The concept of human rights has acquired a prominent place in contemporary political and legal debate today. Turn on the news or read a newspaper: issues of human rights are ubiquitous. Though the concept (in the form of ‘natural rights’ see Chapter 1) first emerges in the Middle Ages, the recognition in the 17th and 18th centuries of the secular notion of human rights was a significant intellectual moment in history. The idea rests on the claim that each of us as a human being, regardless of our race, religion, gender, or age, is entitled to certain fundamental and inalienable rights—merely by virtue of our belonging to the human race. Whether or not such rights are legally recognized is irrelevant, as is the fact that they may or may not emanate from a ‘higher’ natural law (see Chapter 1).

The acceptance by the United Nations, in the aftermath of the Holocaust, of the Universal Declaration of Human Rights in 1948, and the International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights in 1976, reveals a dedication by the community of nations to the universal conception and protection of human rights (see Figure 8).

Human rights have passed through three generations. The first generation were mostly the negative civil and political rights as developed in the 17th and 18th centuries by English political philosophers like Hobbes, Locke, and Mill (see Chapter 1). They are negative in the sense that they generally prohibit interference with the right-holder’s freedom. A good example is the First Amendment to the American Constitution, which makes it unlawful for the legislature to restrict a person’s freedom of speech.

The second generation consists in the essentially positive economic, social, and cultural rights, such as the right to education, food, or medical care. The third generation of human rights is primarily collective rights which are foreshadowed in Article 28 of the Universal Declaration. This declares that ‘everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized’. These ‘solidarity’ rights include the right to social and economic development and to participate in and benefit from the resources of the earth and space, scientific and technical information (which are especially important to the Third World), the right to a healthy environment, peace, and humanitarian disaster relief.

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