Human Rights: Historical Retrospection & Conceptual Foundations
Faheem Iqbal Shayiq2013, IOSR Journal of Humanities and Social Science
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.
