Jurisprudence

Journal of Human Rights, 2004

The spirit of human rights has been transmitted consciously and unconsciously from one generation to another, carrying the scars of its tumultuous past. Today, invoking the United Nations Universal Declaration of Human Rights, adopted by the General Assembly in 1948, one may think of human rights as universal, inalienable and indivisible, as rights shared equally by everyone regardless of sex, race, nationality and economic background. Yet conflicting political traditions across the centuries have elaborated different visions of human rights rooted in past social struggles. That historical legacy and current conflicting meanings of human rights are, despite the admirable efforts of the architects of the declaration, all reflected in the structure and the substance of this important UN document. Using the main keys developed in the declaration, this article engages six core controversies over human rights that have shaped human rights debate and scholarship. It also draws on the historical record in order to identify and to clarify several misconceptions that persist both within and outside the human rights community today. René Cassin, one of the main drafters of the universal declaration, classified the central tenets of human rights by comparing them to the portico of a temple. Drawing on the battle cry of the French revolution, Cassin identified the four pillars of the declaration as: 'dignity, liberty, equality, and brotherhood'. The 27 articles of the declaration were divided among these four pillars. The pillar supported the roof of the portico (articles 28-30), which stipulated the conditions in which the rights of individuals could be realized within society and the state. Each of the pillars represents a major historical milestone. The first pillar covered in the first two articles of the declaration stands for human dignity shared by all individuals regardless of their religion, creed, ethnicity, religion, or sex; the second, specified in articles 3-19 of the declaration, invokes the first generation of civil liberties and other liberal rights fought for during the Enlightenment; the third, delineated in articles 20-26, addresses the second generation of rights, i.e. those related to political, social and economic equity and championed during the industrial revolution; the fourth (articles 27-28) focuses on the third generation of rights associated with communal and national solidarity, as advocated during the late 19th century and early 20th century and throughout the postcolonial era. In a sense, the sequence of the articles corresponds to the historical appearance of successive generations and visions of universal rights. 1 Yet throughout history, the human rights projects reflected in the declaration-whether liberal, socialist, or 'third world' in origin-generated internal contradictions concerning both how to promote human rights and who should be endowed with equal human rights. For instance, while the modern nation-state was originally justified by claims that it would promote human rights, the subsequent prevalence of realpolitik and particularism inspired 19th and 20th century efforts to embody universalism in the form of a succession of

2012

Introduction 159 9.2 The right to work 160 9.2.1 Is there a guarantee of the right to work? 161 9.2.2 Elements of the right to work 162 Access to employment 163 Free choice in employment 164 Freedom from arbitrary dismissal 165 9.3 The right to education 165 9.3.1 The right to education in international human rights instruments 166 9.3.2 Access to education 166 9.3.3 Aims and objectives of education 168 9.3.3 Academic freedom 170 9.3.4 The right to human rights education 170 904 Conclusion 172

IOSR Journal of Humanities and Social Science, 2013

As human civilization grew, a need arose to develop certain institutions & organizations, the most important & latest of which was the state itself. Primarily this institution was concerned with administration of Justice & defence. Now for this administration of justice & defence, the state needed to empower certain people so as to legitimize their work. However more often than not the power conferred came to be abused proving the dictum right that power corrupts & absolute power corrupts absolutely. The State instead of being a protector became an oppressor. The dominating philosophy of Positive Law furthered the dictatorship, which came to be practiced by the regimes like the Nazi in Germany. Such regimes thriving on the philosophy that law is what is made, irrespective of its goodness or badness & completely ignoring the concept of what law "ought" to be, made things worse for the ruled. In this way self-styled autocratic rules came to be formed & promulgated, not for the benefit of the governed but the vested interests of the governing. The failure of these machinations led people to look for an alternative but found no options & started to look to heavens for help & this led to the revival of Natural Law Philosophy. As per this philosophy the Natural law being the supreme law wants every positive law to be subservient to the Cosmic order. Rousseau, a Naturalist in his treatise On the Social Contract in 1762, had observed & very rightly so, "The man is born free but everywhere he is in chains" The Natural law philosophy aimed at preservation of peace & establishment of order solely by relying on morals, ethics & reasoning. This was an immediate cure to the tyrannical enactments & draconian laws of the autocrats. But even the Natural Law failed as well beyond a certain point. The chief argument about its insufficiency was that it was an abstract idea & at times favored the ruler & at times the ruled. As a result a need was felt to have some other device to rescue the abuse & misuse of power by the state. The development gave birth to what we call Human Rights Jurisprudence. The Human Rights Jurisprudence has helped the establishment of legal regimes at the International, National as well as State levels. The need necessitated mankind to make endeavors in this direction so that the sacred humanness is preserved & protected much to the stability of world order.