HUMAN RIGHTS Chapter 4 – page 86 (Overview)

So far we have looked at….. The evolution of Human Rights (Natural Rights) Universal declaration of Human Rights (Post WW2) Canadian Bill of Rights (Diefenbaker) Charter of Rights and Freedoms (Entrenched Human Rights)

The concept of Human Rights Incorporates not only liberties associated with being a member of a free political party but entitlement to a fair distribution of what society has to offer Food Shelter Jobs Education and or Wealth

Where do rights come from…… Natural law and positive law Natural: grounded in natural law theory are viewed as enduring and universal; that is, subject to minimal or no limitation Positive: derived from positive laws (usually statues) that are shaped by political authority, whether dictatorial or democratic and are subject to cultural, social, economic and political changes within society (Iceberg Theory)

What would a critic say…. Natural: supporter would argue that the “right to life” is an absolute or non-restrictable right Positive: supporter might concede the “right” by prohibiting capital punishment, but later may withdraw the “right” if social and political conditions warrant it. That is, if the murder rate rose during abolition of the death penalty Likewise, positive law rights are subject to the rule of law and are restrictable rights for the collective well-being of society

Natural rights advocate would claim supremacy of these rights over human laws and common for natural rights to be expressed as justification for civil disobedience and dissent

Modern Philosophical Development Modern human rights developed by St. Thomas Aquinas Believed that basic human need under natural law such as self preservation and procreation require certain human rights However, this was attacked by positive law theorists Thomas Hobbes felt that there could be no rights without strong, coercive human laws to enforce them That is, human rights were both given and taken away by laws of the state

This is illustrated by Jeremy Bentham Right is a child of law; from real laws come real rights, but from imaginary law, from “laws of nature,” come imaginary rights….Natural rights are simple nonsense.

Modification of the State Positive Law = command of the state John Locke modified this view Positive law of the state was embedded in a constitution, the foundation for legal order, which is based on natural law Locke believed that God created humans as a free, equal and independent; no individual group had the right to impinge upon the freedom of another and the sole purpose of government was to protect individuals against arbitrary acts of others who would interfere with their freedom

Locke approved of revolt when the state did not use power for the common good, but for selfish purposes This constitutional liberty was adopted by both leaders of the French and American Revolutions that became their legal fabric at the end of the 18 th century

Cue: Jean-Jacques Rousseau Social Contract Theory – a contemporary approach to government and human rights Social contract expressed the idea that all persons within a state were deemed to have entered voluntarily in to a contract with one another to form a civilized society Likewise, the promise to adhere to the laws of society, collective society or the state that would protect and guarantee equality for each individual

John Stuart Mill on “Liberty” Human Liberty was comprised freedom on conscious (thought, feeling, opinion and sentiment), freedom of expression, and the the right to publish, liberty of tastes and pursuits and freedom to unite These freedoms are not absolute because they should not deprive others of the same equal opportunities Mill has more influence than any other philosopher in the modern notion of Liberty and; Mill’s approach of liberty is most evident in the Canadian Charter of Rights and Freedoms

Modern Perspective American philosopher John Rawls Theory of justice is based on the greatest degree of individual liberty and equality that is compatible with similar rights for all Idea of distributive justice provides that life’s good things, such as liberty, opportunity, wealth and self-respect should be distributed equally, unless an unequal distribution would help those less fortunate Rawls theory provides basis for s. 15(2) of the Charter which exempts Affirmative Action Programs from claims of discrimination

Classifying Rights Terminology Liberty or freedom without interference by the state is known as civil liberties 4 Categories of Liberties Political Civil Liberties: freedom of association, freedom of assembly, freedom of the press, freedom of conscious and religion Legal Order Civil Liberties: freedom from arbitrary arrest, search and seizure of person, premises and access to counsel

Economic Civil Liberties: free collective bargaining, right to strike, freedom from state regulation and interference of economic affairs Liberty of Human Rights Civil Liberties: equality of employment, opportunity or of access to public places without discrimination on account of race, colour or religion or ethnic or national origin or ancestry

The Weight of Human Rights An individual rights are weighed against his or her responsibilities to other citizens and to society as a whole Greater harm analysis – the exercise of individual freedoms or rights should not cause greater harm to another individual group