Human Rights Law
- 1. Describe and explain the differences between stoicism and religious humanism. Pick one enlightenment author and explain fully how stoicism and religious humanism influenced his/her writing.
Answer: The philosophy of stoicism advanced the idea of universal brotherhood as applied to the aristocracy or citizen of the republic. Cicero, a Stoic, argued that certain individuals were entrusted by the gods with the capacity to reason, to derive subsistence from nature, and to unite peacefully with other fellow citizens. According to the Stoics, nature is orderly and rational, and only a life led in harmony with nature can be good. Because life is influenced by material circumstances, Stoics believed one should try to be as independent of such circumstances as possible. The pursuit of certain virtues, such as truth, wisdom, courage, discretion and justice would enable one to achieve harmony.
Religious Humanism, based on the great religions of the world such as Christianity, Judaism, and Islam, incorporates many moral and humanistic principles often defined as duties. These duties and principles are founded on natural law and formed the basis for a temporal social order reflecting positive law. However, unlike the Stoics, these duties and principles were to be applied universally to all individuals, whether or not the individual be citizen, slave or foreigner.
Hugo Grotius' political thinking was greatly influenced by both Stoicism and Religious Humanism. Eager to find a way to end the religious wars of the Reformation, he attempted to reconcile moral conduct and political practice. He argued that natural law is a part of divine law and is based on human nature, which exhibits a desire for peaceful association with others and a tendency to follow certain general principles of conduct. He used concepts such as the equality of individuals, individual rights and moral duties to one's fellow person to develop his theory of a just war. He distinguished the laws of nations from the laws within the state. He wrote: "What is done by reason of an unjust war is unjust from the point of view of moral injustice." He defined the laws of nations in terms of moral human conduct and argued that such conduct was not only to govern actions within individual states, but also within the larger society of humankind, of which states were members as well. His writing On Laws of War and Peace (1625) was one of the first great contributions to modern international law.
- 2. Compare and contrast the human rights theories of Hobbes, Locke, DeGouge, and Paine. Explain what documents of law (international or domestic law) are related or indebted to their theories.
Answer: The human rights theories of Hobbes, Locke, de Goughe and Paine represent a progressive thinking of the enlightenment period. First applying divine law, and then natural law concepts to the social contract between individuals and forms of government to affect the human condition -- from very basic human rights in exchange for minimal protection to the extension of full equal rights to all free men, women and slaves.
Hobbes espoused a doctrine of sovereignty based on divine law, which established a minimal standard of basic human rights. He argued that individuals, by nature, are fearful, predatory and operate on the basis of self-interest. In order to be secure in their person, individuals enter into a social contract, in which they grant absolute power to a sovereign authority to regulate conduct, in exchange for the right to security and make possible the satisfaction of certain human desires such as peace and stability. If a sovereign failed to provide security and order, then the social contract is void. The people could revolt and overthrow the sovereign, otherwise the sovereign had absolute supremacy over human rights.
Locke argued that men by nature are all free, equal and independent and the only way to divest themselves of their natural liberty is to put on the "bonds of civil society" by agreeing with other men to unite in community for their mutual comfort, safety and peaceable living. Therefore, governments are legitimate only insofar as they preserve these fundamental rights. To keep government from overreaching its mandate to protect the right of the citizenry, government must have checks and balances.
de Gouge fought for the recognition that natural rights extended to women. Her Declaration of the Rights of Woman and of the Citizen (1790) was modeled on the Declaration of Rights of Man and of the Citizen (1789) which excluded women's rights and concerns even though women were active in the French Revolution. She asserted women were capable to reason and make moral decisions, and pointed to feminine virtues of emotion and feeling. She argued that women were not simply the same as men, but was their equal partner.
In his The Rights of Man (1792), Paine described natural rights as those belonging to man prior to civil society. These rights included the right to protection and property. Paine, unlike Hobbes, argued against the absolute sovereignty of monarchs or divine rights, and further advanced the theory of the social contract based on the fundamental doctrine of natural rights. Based on the doctrine of natural rights, he also argued against the institution of slavery.
The humanist principles on rights espoused by Hobbes, Locke and Paine were used in the Declaration of Independence and by the framers of the U.S. Constitution. Our founding fathers argued against Hobbes' divine rights theory and embraced Locke and Paine on the issues of natural rights and the purpose of government. And, de Gouge's Declaration of the rights of women would serve as the foundation for Women's suffrage and the right to vote in the U.S., and the UN Convention on the Political Rights of Women.
