Human Rights: Conceptual Analysis
Presented by
Dr. Md. Hafiz Uddin Bhuiyan
Professor
Institute of Social Welfare and Research
University of Dhaka
Concept of Human Rights
Human rights are commonly understood as "inalienable fundamental
rights to which a person is inherently entitled simply because she or he is
a human being."
Human rights are thus conceived as universal (applicable everywhere)
and egalitarian (the same for everyone). These rights may exist as
natural rights or as legal rights, in both national and international law.
The doctrine of human rights in international practice, within international
law, global and regional institutions, in the policies of states and in the
activities of non-governmental organizations, has been a cornerstone of
public policy around the world.
Defining Human Rights
Human rights are commonly understood as being those rights which are
inherent in the mere fact of being human. The concept of human rights
is based on the belief that every human being is entitled to enjoy
her/his rights without discrimination. Human rights differ from other
rights in two respects.
Firstly, they are characterized by being:
• Inherent in all human beings by virtue of their humanity alone (they
do not have, e.g., to be purchased or to be granted);
• Inalienable (within qualified legal boundaries); and
• Equally applicable to all.
Secondly, the main duties deriving from human rights fall on states and
their authorities or agents, not on individuals.
Human rights are fundamental to the stability and development of
countries all around the world. Great emphasis has been placed on
international conventions and their implementation in order to ensure
adherence to a universal standard of acceptability.
With the advent of globalization and the introduction of new technology,
these principles gain importance not only in protecting human beings
from the ill-effects of change but also in ensuring that all are allowed a
share of the benefits.
The following definition expresses clearly the meaning of human rights:
“A human right is a universal moral right, something which all men,
everywhere, at all times ought to have, something of which no one may
be deprived without a grave affront to justice, something which is owing
to every human simply because he is human.”(S. Augender; 2002)
Human rights are the integrated, broad and cover a wide range of rights.
Generally Human rights refer to those rights which are natural, inherent in
our nature and without which we can not live as a human being.
Human rights are those indispensable rights which are essential for
humankind to live and to keep up existence as social beings. Everyone is ,
therefore, entitled to human rights without any distinction.
According to Social work Dictionary(3rd Edition)- Human rights are the
opportunity to be accorded the same prerogatives and obligations in
social fulfillment as are recorded to all others without distinctions to
race, sex, language or religion.”
Thus human rights can be titled as the instrument by which individual as
well as socio-economic and political progress can be achieved.
Disregard and denial of human rights create discrimination, oppression
and conflict within and between societies and nations.
Human Rights covers three areas
To live;
To grow up;
To development.
For the purpose of better understanding the components of human rights
can be looked at from two angles of vision. Such as
1. Natural Rights
2. Positive Rights.
1. Natural Rights:
Natural rights refer to those rights which everyone is entitled to enjoy by
virtue of being human. As an hereditary rights, natural rights are
inalienable and it is the reflection of our differential qualities from other
animals. For example, man can say and think; so his natural right
comprises freedom of movement, freedom of thought and conscience,
the right to freedom of opinion and expression etc.
2. Positive Rights:
Positive rights refer to those rights which are protected and secured by
the laws and legislations. Though positive rights are formulated
according to the socio-economic and political structure of a nation; it
represents the universal needs of mankind. The right to take part in
government of own country, the right to social security, the right to equal
access to public service in own country etc. are the positive rights.
So human rights in real sense of the term refer to the combination of both
natural rights and positive rights.
Human Rights= Natural Rights+ Positive Rights
Sources of Human Rights
• Religion;
• Natural law;
• Legal positivism;
• Marxism;
• International customs;
• General principles of international law;
• International agreement;
• Decisions of international court;
• Opinions of lawyers;
• Decisions of international organizations.
Classification of Human Rights
Human rights have been divided into three categories;
• First generation rights which include civil and political rights.
• Second generation rights such as economic, social and cultural rights;
• Third generation rights such as the right of self-determination and the
right to participate in the benefits from mankind’s common heritage
Human rights may be either positive or negative. An example of the former is
the right to a fair trial and an example of the latter is the right not to be
tortured.
In another way, Human Rights are five types in nature
• Civil rights;
• Political rights;
• Economic rights;
• Social and Cultural rights;
• Solidarity rights, i.e right to development, right to self-
determination etc.
Basic Requirements for Human Rights
Any society that is to protect human rights must have the following
characteristics:
• A free state in which the right to self-determination and rule of law
exist.
• A legal system for the protection of human rights;
• Effective organized (existing within the framework of the state) or
unorganized guarantees.
•
Approaches to Human Rights[1]
The Natural Law Approach
This theory focuses on a natural law that is higher than positive law (law
created by man) and to which the latter must conform. Natural law is based
on equality. However since it employs means such as the revelation of
divine will, transcendental cognition and participation in natural reason,
none of its claims an be conclusively confirmed or rejected.
The Historical Approach
This approach views human rights as a function of culture and
environment and inculcates space and time factors as well. However, it has
three distinct drawbacks.
•Firstly, it sometimes does not consider the individual as an entity outside
of the community.
•Secondly, it gives more importance to language, religion etc. than the
actual views of people.
•Thirdly, by focusing on the differences between societies, it undermines
the universality of human rights.
[1] M. S. McDougal et. al., Human Rights and World Public Order (London:
Yale University Press, 1906) at 68-82.
The Positivist Approach
This approach sees law as enacted by an authoritative sovereign and
deriving sanction from coercion. The main disadvantage here is laws
would not stem from the will of the people but from that of the sovereign.
Obedience would be more easily obtained if sanction came not from force
but from laws being based in the values of society.
Positivists also see only nations and not individuals as subject to
international law, a view that would render ineffective a number of
instruments available today.
The Marxist Approach
This view comes from the writings of Karl Marx in the context of the 19th
century industrial revolution. It posits that in capitalist societies, human
rights do not exist. They only come into being in a classless society where
there is public ownership of the means of production.
This approach too suffers from defects one of which is that it views the
development of human rights in a communist society as inevitable and not
problematic.
The Social Science Approach
This approach locates human rights in the context of larger social
processes, dwelling on the community’s role in shaping principles. It uses
scientific and empirical methods, models and techniques to estimate the
degree of success/failure of human rights. It fails however, to provide a
clear link between social processes and the law.
Salient Features of Human Rights
The evident characteristics of human rights make them different from
other rights. The unique features are as follows;
• Inherent;
• Not exchangeable;
• Universality;
• Equality;
• Feasibility.
Thank You
Very Much