The Rockiest of Roads
The Rockiest of Roads: A History of Human Rights
from the Magna Carta to the United Nations
Anna Thompson
University of Utah
The Rockiest of Roads
2
Abstract
This paper seeks to trace the development of human rights from the British
Magna Carta to the creation of the United Nations High Commissioner for Refugees, and
the beginning of the modern era of human rights, in 1950. It also seeks to draw
comparisons between the development of human rights in France and the United States
and to illustrate how the countries shared with one another and how their paths on the
way to modern human rights were often quite parallel.
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3
It is very difficult to objectively trace the development of human rights in the
world, mostly because we have yet to come to a consensus on what, exactly, makes up
such rights even today. We in the United States view human rights and the use of the
death penalty in the American justice system as two separate matters, whereas in Europe,
for example, the use of the death penalty in US cases is a human rights issue. Lynn Hunt
attributes the development of human rights to the development of empathy and
individualism in her Inventing Human Rights: A History i. I am inclined to agree with this
assessment. And as empathy and even individualism, to some extent, cannot really be
measured empirically, we are left to trace steps forward and back in the development of
humanity and wonder at what may have prompted them. It can be easier, then, to identify
relationships, knowledge sharing, and use these tools to seek out common causes of
identified similarities. In the case of this paper, it will be similarities between France and
the United States.
The Oxford English Dictionary offers up this intriguing snapshot upon a general
query relating to human rights
“1791 T. P AINE R ights of M an 110 The representatives of t he people o f
France..considering that ignorance, neglect, or comtempt of human rights,
are t he s ole causes of p ublic m isfortunes..have r esolved t o s et forth..these
natural, i mprescriptible, and una lienable r ights. 1877 Independent ( N.Y.)
18 Jan. 2/2 ‘What does that little rat know about human rights?’ Pack said.
1941 ‘ G. ORWELL’ i n H orizon A ug. 134 A n a ttempted d efinition of
fundamental hum an rights. 1945 C harter of U nited N ations A rt. 1 p ar. 3 ,
To achieve international cooperation..in promoting and encouraging respect
for human rights. 1969 New Yorker 14 June 78/2 More middle-class blacks
will become involved in human rights.” ii
The c onflicts i nherent in t he de velopment of hu man r ights a re clear even i n t his
short e xample. W ho i s qualified t o s peak for all hum ankind? H ow f ar do t hey
extend, and whom do t hey cover? B ecause human rights are fundamentally open
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to interpretation, these questions may always play a role in discussion. And that
discussion i s ne arly a lways c yclical. O ne m ust a lways t ake i nto a ccount t he
foreign pol icy l andscape a nd t he dom estic e conomy, a nd t he ove rall i ntellectual
and academic trends of the day.
While it w ould c ertainly be v alid to lo ok a t th e N ew T estament o r th e
movement a way f rom t he “ eye for an eye” phi losophy o f H ammurabi’s Code a s
the be ginning of t he hum anistic ( as i n, “ concern f or a ll hum ans”) t rend i n t he
world, human rights as we know it really began with the document referenced b y
Thomas P aine i n t he a bove quot e: The Declaration of the Rights of Man and
Citizen, published b y t he N ational Assembly i n France i n 1789, dur ing t he e arly
days of t he F rench R evolution. Indeed, i n t he field of hum an rights, France and
America often leapfrog one another in progressive periods, even as they echo one
another in their failures.
One cannot look at the French Revolution, especially in the context of the
documents pr oduced b y t he N ational Assembly, w ithout f irst l ooking a t th e
beginnings of American i ndependence. T homas J efferson be gan t he Declaration
of Independence this w ay: “ When i n t he C ourse of hum an e vents, i t be comes
necessary for one pe ople t o di ssolve t he pol itical ba nds w hich ha ve c onnected
them with another, and to assume among the powers of the earth, the separate and
equal s tation t o w hich t he l aws of N ature a nd Nature’s God e ntitles t hem…” iii
This excerpt shows two main points. First is that rights in Jefferson’s time fell into
two categories. Certainly, there were rights guaranteed to you by your government
– your rights as a citizen. A nd then, in an entirely different class were the rights
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guaranteed to you by being human. He refers to them as “natural rights,” but they
are essentially what we would refer to today as “human rights.”
Neither o f t hese i deas i s p articularly n ew. T he i dea t hat a p erson h as
inherent va lue a s a p erson i s one of t he m ost c ontroversial s ections of the N ew
Testament in th e C hristian B ible.
It is w hat Lynn H unt id entifies a s t he
acknowledgement of the individual and the self-possession of the same. T his is a
paradigm shift from a culture of subjection in the sense of literally being subjects
in a kingdom or empire. There was little sense of the rights of an individual man,
as all men were subject to a king, who was then free to do a s he liked with them,
and i n s ome c ases c iting hi s r uling a a uthority f rom G od a s j ustification.
Consequently, pr actices l ike j udicial t orture s prung up a nd w ere a ccepted a s
norms. People were not in charge of their bodies, the state was.
The British were among the first to test this relationship, presenting “Bad”
King John with the Magna Carta Libertatum, or the Great Charter of Freedom, in
1215. It went t hrough several r evisions, be fore P arliament a nd K ing E dward I,
grandson t o John, s ettled on a f inal ve rsion a dopted i nto E nglish l aw i n 1225. iv
The document itself represented the first time that a group of subjects had forced a
monarch t o a cknowledge t hat he w as bound b y law. Its f orefather ha d been t he
Charter of Liberties, or the C oronation C harter, t hat w as w ritten b y H enry I t o
address w idespread di scontent f ollowing t he c orruption-riddled r eign o f W illiam
II, or “William Rufus.” v The text of the document consists of fourteen procedures
that Henry agreed to follow, as he laid out for himself. vi
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The British Magna Carta had great impact upon the American Declaration
of Independence and Constitution, and both served as models for the new French
Constitution a nd D eclaration of R ights c reated by th e N ational A ssembly at th e
start of t he F rench R evolution. B ut, of c ourse, he re w e r ecognize a nother
fundamental f act o f h uman r ights: th eir d evelopment is c yclical. O ftentimes
countries t hat a re on t he f orefront of t he hum an rights m ovement i n one decade
could be pa ssing l aws t hat i ncrease s ubjugation a nd r epress t heir c itizens i n t he
next. T he br ight pr omise of t he F rench R evolution de scended s hortly i nto the
Terror and t hen t he N apoleonic c ampaign t o r ule t he w orld. S uccessive B ritish
monarchs s pent a great deal of t ime and e ffort s uppressing t roublesome subjects
with little to no regard of the rights of Habeus corpus outlined in the Magna Carta,
and after declaring that man existed with a natural state of rights that included life,
liberty, and the pursuit of happiness, America spent a large amount of time in the
eighteenth a nd ni neteenth c enturies r estricting w ho m ight c ome i nto t he country
and live. To a impartial observer, it might well seem that human rights work under
the f ormula of “one s tep f orward, t wo s teps b ack.” H owever, i t i s i mportant t o
note t hat t he failure of h uman rights often l eads to t he greatest gains i n t erms of
establishing new and better conventions to safeguard them.
The American Revolution was one such "failure." P rior to 1776, t he first
half of the eighteenth century had tended towards a rather narrow version of rights
that f ocused, a s t he M agna C arta di d, on t he rights guaranteed t o a pe rson a s a
citizen of a certain s tate or m ember of a c ertain gr oup. E nglishmen w ere
guaranteed c ertain r ights be cause of t heir English bi rth. N oblemen w ere
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guaranteed ot her s uch rights b y vi rtue of t heir n oble bi rth, and s o on. However,
when declaring independence from England, Thomas Jefferson could not very well
assert the rights of the American colonists as British citizens, and so he moved into
universal rights that one need only to be human to qualify for.
The t wo great Universalist t hinkers at t he t ime were Thomas Hobbes and
John Locke, and both left their imprint upon the Declaration of Independence vii John L ocke m ost not iceably, as s ection 83 of hi s T wo T reatises of G overnment
begins, "Man being born, as has been proved, with a title to perfect freedom, and
an unc ontrolled e njoyment of a ll t he r ights a nd pr ivileges of t he l aw o f n ature,
equally with a ny ot her man, or num ber of m en i n t he w orld, ha th b y nature a
power, not only to preserve his property, that is, his life, liberty and estate, against
the i njuries a nd attempts of ot her m en..." viii and this i s, of c ourse, r emarkably
similar to the Jeffersonian doctrine of "life, liberty, and the pursuit of happiness." ix
Jefferson us ed t he failure of t he British government t o a bide b y i ts dut ies t o i ts
citizens as justification for the break, and the more universalistic principles of the
rights of man to envision a new future for the American colonies.
The V irginia D eclaration of R ights of June 12 , 1776 a lso s erved a s a
template f or t he D eclaration of Independence. It w as a dopted i nto t he V irginia
Constitution on June 1 2, 1776, a nd w as th e f irst d ocument o f its k ind th at
guaranteed such rights to every citizen of the land, regardless of birth. It also went
much f arther i n t erms of g uaranteeing s pecific r ights t o f reedom of r eligion,
habeas corpus, and the appointment of civil society positions based upon merit and
not hereditary lines. x
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Many of t hese s ame c oncerns w ould a ppear i n James M adison's B ill of
Rights, or the first ten amendments to the constitution that were ratified in 1789. xi
In fact, it is quite striking that neither Thomas Jefferson, the authors of the Articles
of C onfederation, or t he c onstitutional f ramers f elt t he ne ed t o e numerate s uch
specific rights as d ue p rocess and f reedom o f the p ress t hat h ave b ecome s o
significant a nd in trinsic to A merican s ociety to day. T he o bvious answer i s, of
course, s lavery. T he i nstitution of s lavery was i ntrinsic t o t he functioning of t he
Southern plantation agricultural economy, and the South would not have joined the
union w ith s uch a c ontroversial pr oposal on t he t able. W hy w ere s laves not
covered by the declaration of rights?
But r arely i s t he obvi ous a nswer t he onl y one , a nd pe rhaps e ven m ore
rarely can the particulars of the American beginnings be summed up s o easily. In
fact, M adison p resented t he B ill of R ights t o t he F irst C ongress i n 17 89 i n a n
attempt to temper the dispute between the Federalists and the Anti-Federalists. In
the first camp, some of the Founding Fathers and authors of the Constitution had
turned a gainst i t during t he editing process and were no w oppos ed t o ratification
because the document did not include any concrete guarantees of human rights and
limiting of governmental powers. xii
However, A lexander H amilton a lso ha d a c oncern t hat i s c ommon i n t he
struggle to define human rights: in creating a list of enumerated protected rights,
you necessarily also create a list of rights that are not protected, and raise questions
about how far the rights extend and to whom. H e was answered b y "Brutus," or
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Robert Y ates, i n t he A ntifederalist N o. 84, w hich i s a n e xtensive treatise o n th e
pitfalls of having a constitution that did not state the rights of its citizens. xiii
Defining t he r ights of men a s t he French and A mericans di d i n t he
eighteenth century can only give rise to more questions and a further stretching of
boundaries, of tentimes b eyond what one i s pr epared t o c oncede - as t he F rench
delegates to the National Assembly soon found out.
The story of France at the beginning of the Revolution is familiar. In 1788,
France was facing bankruptcy, in part due to their support of the American forces
in t he R evolutionary W ar, and confidence i n King Louis XVI was badly eroded.
Under increasing public pressure, Louis agreed to invoke the Estates, last called to
Versailles i n 1614. xiv The E states ar e composed of t hree l evels, first be ing t he
clergy, s econd be ing t he nobl es, a nd t he t hird be ing t he c ommon pe ople.
Throughout al l o f t hese classes, r egional elections w ere h eld an d d elegates w ere
chosen t o j ourney t o V ersailles. T he gathering ope ned on M ay 5, 1789, a nd t he
name National Assembly cam some three weeks later. T he Third Estate declared
itself t o be a pa rt of t he N ational A ssembly, t he c lergy s oon f ollowed, a nd t he
nobles trailed along reluctantly behind the other two Estates. xv The new National
Assembly pr omptly s et to t he bus iness of c reating a C onstitution, s etting up a
committee o n J uly 6 . Three d ays l ater, i t an nounced a s imilar co mmittee f or a
declaration of rights. xvi
The document produced, The Declaration of the Rights of Man and of the
Citizen, on A ugust 26, 1789 w ould pr ove t o b e a groundbreaking m oment f or
human r ights. It, l ike t he Declaration of Independence could b e c onsidered a
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10
“failure,” a s it a lso f ailed to s et o ut a d eclaration w ith a ctual c onstitutional-level
legality, and instead listed principles. However, in a quite unique case of principle
becoming c onstitutional, f ollowing Louis’ l ess t han e nthusiastic approval of t he
declaration on O ctober 5, 1789
xvii
, th e A ssembly s et to “ practicalizing” th e
principles enumerated, granting the rights of a French citizen first to Protestants in
1789, t hen e xtended t hem t o a ll pr ofessions i n 1791.
Prior t o this, c ertain
professions w ere e xcluded f rom vot ing, f or e xample, due t o c oncerns a bout t he
effects of t heir j ob on their m orality. T hese pr ofessions i ncluded actors an d
executioners. A certain selection of freed black slaves were granted the vote and
citizen rights in May of 1791, and then had it revoked, reinstated and expanded in
the pe riod b etween t hat M ay a nd A pril 1972. Finally, t he r ights of c itizenship
were granted t o al l m en i n t he m etropolitan ar eas o f F rance ( servants an d
unemployed excluded) on August 10, 1972. Slavery was abolished in France (but
now, how ever, F rench colonies) i n 1974, t hough t he p ractice di ed ou t r ather
slowly. W omen di d no t g ain s ubstantial c itizenship r ights in te rms o f v oting o r
holding e lected of fice, h owever t hey di d get t he r ight t o e qual i nheritance a nd,
significantly, the right to divorce. xviii
In comparison, t he U nited S tates di d not a bolish t he pr actice of s lavery
until 1865, though they did end the slave trade in the States un 1807. The ending
of the practice required an amendment to the Constitution, as the slave trade had
been a m atter of s tate control, a nd t his be came the 13 th Amendment t o the U .S.
Constitution. I t w as no t, how ever, unt il 1868, with t he r atification of the 14 th
Amendment a nd t he ov erturning of t he Dredd Scott court c ase i n w hich t he
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Supreme C ourt o f th e United S tates r uled th at a b lack s lave c ould n ot c laim
citizenship in the country and that though Mr. Scott had spent a great deal of time
living in territories in which slavery was illegal, he could not actually sue for his
freedom as it violated his owner’s property rights. This, essentially, meant that in
the eyes of the state, a slave was not human at all, rather something to be regarded
in the same category as a horse or tract of land. xix
In a disturbing parallel, leaps in human rights in both France and America
were accompanied by periods of intense violence. A s France and the Revolution
that h eld such pr omise for s o m any de scended i nto t he T error, one e stimate put s
the de ath t oll a t t he guillotine a t 17,000 xx, t hough ot her e stimates ha ve a much,
much higher number. Ironically, the National Assembly had just standardized the
guillotine a s th e h umane m anner o f enacting d eath s entences i n i ts efforts at
judicial reform. T he instrument had previously been reserved for members of the
First and Second Estate, with the manner of death for the Third Estate being much
more colorful and painful. xxi
Likewise, the A merican C ivil W ar w as a pa inful a nd bl oody e nd t o a
beginning carried out as much in hope and humanity as politicking. Eleven states
had s eceded f rom t he Union i n 1861, a nd s oon a ttacked Fort S umter in S outh
Carolina. The resulting war killed over 620,000 American troops, devastated large
swatches of the country, ripped apart families and friends, and changed the fabric
of t he c ountry pe rmanentlyxxii. A t t he e nd of t he w ar, i n 1865, A merica ha d
abolished slavery, weakened the power of the state versus the federal government,
and launched the country into a Reconstruction system with the Civil Rights Act of
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1875 t hat w as w ell i ntentioned, but s et up t he “ separate but e qual” p eriod of
segregation th at la sted well in to th e s econd h alf o f th e tw entieth c entury as th e
entire Western European area was marked by rising anti-Semitism. xxiii
The tide rising against Jews in Europe was of a new and dangerous sort of
variety. xxiv
No l onger w ere t hey regarded a s s imply i nferior, di stasteful but
harmless. In l ight of t he Dreyfous A ffair o f 1 894 i n w hich a a rmy officer i n
France w ith a J ewish b ackground w as w rongly accused o f s pying for G ermany,
and t he r elease o f t he f ictional Protocols of the Elders of Zion in 1903 xxv, J ews
and those of J ewish heritage began to be regarded as inferior but dangerous, and
important d istinction a s political f igures a cross th e r egion b egan to f ind th em a
convenient scapegoat, and nowhere was this more effective than for Hitler during
his meteoric rise to power between the first and second World Wars.
In an interesting role reversal, after leading the pack in a s ense during the
Revolution, France lagged far behind when it came to granting universal suffrage.
It did not grant women the right to vote until 1944, despite the fact that Olympia de
Gouges publ ished Declaration of the Rights of Woman in 1791 xxvi, a nd Mary
Wollstonecraft published her Vindication of the Rights of Woman shortly after, in
1792 xxvii. De Gouges went to the guillotine in 1793, and Mary Wollstonecraft died
in 1797 following complications from childbirth. Clearly, there was movement on
a m ultinational f ront t owards w omen’s s uffrage, but t he f irst s ignificant w orld
power t o g rant w omen t he r ight t o vot e w as A ustralia i n 1902. T he N ineteenth
Amendment in the United States followed in 1920, and Great Britain in 1928.
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13
The r oller-coaster of pr ogress of hum an r ights t ook a de cidedly di fferent
turn i n t he 19 th and 20 th centuries as s tates reacted to N apoleon’s imp erialistic
aggression b y be ginning t o or ganize t hemselves into na tion states. S ome of t he
time, t he pa rameters of t hese ne w s tates w ere ba sed upon r egions or c ultural
commonalities, b ut in Germany, th e id ea o f th e nation-state w as one b ased upon
ethnic hom ogeneity.
xxviii
Following th is p aradigm s hift, th eoreticians in ma ny
countries t ook i t upon t hemselves t o c ome up w ith a r easonable e xplanation f or
how human rights had suddenly become decidedly less universal and emphatically
more oriented towards citizenship in a state. T his prompted a spate of pamphlets
and t reatises o n t he bi ological s uperiority of c ertain r aces or na tions ove r ot hers,
the most prominent of which was Arthur Gobineau’s Essay on the Inequality of the
Human Races, published between 1853 and 1855, and which proved to be a central
theme to Hitler’s ideology. xxix
The aftermath of two World Wars, and especially the photographs and accounts
of the Allied troops liberating concentration and death camps helped to swing public
sentiment back towards a more universalistic approach, an approach which Marie Jean
Antoine Nicolas de Caritat, marquis de Condorcet, a Frenchman, and one of the women’s
suffrage movement’s most unlikely champions, classified as: “Either no individual in
mankind has true rights, or all have the same ones; and whoever votes against the right of
another, whatever be his religion, color, or his sex, has from that moment abjured his own
rights.” xxx His editorial “On the Admission of Women to the Rights of Citizenship” is
required reading for anyone trying to understand what a universalist concept of human
rights looks like.
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14
Following the spectacular failure of the League of Nations to prevent a second
world war, the United Nations emerged with greater powers and a stronger commitment
to avoid such a global conflict in the future. The seeds of the union were born in the
Atlantic Charter that united the Allied countries fighting against Germany and Italy
during the war, and the agreement was extended and formalized in 1945 in San Francisco
with 50 countries in attendance – including the Soviet Union xxxi. Since then, the work of
the United Nations and its High Commissioner for Refugees (UNHCR), which was
established in 1950 and won its first Nobel Peace Prize four years later xxxii, has largely
defined the scope and field of human rights for citizens of first world countries.
The UNHRC and the UN continues to pair with aid groups and NGOs to identify
situations of human rights crisis and address them, often using widespread media
coverage as a tool. This suggests, to me at least, that we have come a long way in the
development of self-identity and empathy, not simply for those outside our immediate
area, but for those living in situations that are nearly unimaginable for the average person.
Wherever we’re headed in the future, we can be sure that it will be together. After all,
France and America would have had a very different development model for human
rights had they not spent the better part of the last three hundred years copying and
leapfrogging one another in the field. There is certainly cause for hope that such
partnerships will spur future leaps and bounds in our culture of human rights.
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i
15
Hunt, Lynn (2007). Inventing Human Rights: A History. New York, New York: W.W.
Norton & Company.
ii
Human Rights. (1989). In The Oxford English Dictionary [Web]. Oxford: Oxford
University Press. Retrieved 10/7/08, from
http://dictionary.oed.com.tproxy01.lib.utah.edu/cgi/entry/50109083?query_type=word&q
ueryword=human+rights&first=1&max_to_show=10&single=1&sort_type=alpha
iii
Jefferson, T. (Ed.). (1776). Declaration of Independence. Philadelphia
iv
Vincent, Nicholas The Magna Carta. Retrieved October 9, 2008, from Sotheby's
Catalogue Web site:
http://www.sothebys.com/liveauctions/event/N08461_MagnaCarta.pdf
v
Barlow , Frank (1983). William Rufus. Berkeley, California: University of California
Press.
vi
The Constitution Society, Henry I: Coronation Charter (1100) . Retrieved October 9,
2008, from Sources of English Constitutional History Web site:
http://www.constitution.org/sech/sech_023.htm
vii
Glenn, Gary D. (1978).Inalienable Rights and Positive Government in the Modern
World . Journal of Politics. 41, 1057-1980.
viii
Locke, John (1690). Two Treatises of Government.
ix
irst Congress of the United States. (1776). Declaration of Independence [Brochure].
Philadelphia, PA:
x
Virginia Convention of Delegates. (1776). Virginia Declaration of Rights (Final ed.)
xi
(2008). U.S. Constitutional Amendments. Retrieved October 9, 2008, from FindLaw:
For Legal Professionals Web site:
http://caselaw.lp.findlaw.com/data/constitution/amendments.html
xii
Hamilton, A, Jay, J, & Madison, J (1877). The Federalist No. 84.
xiii
Yates, Robert (1788). Antifederalist No. 84 ON THE LACK OF A BILL OF RIGHTS.
xiv
Bossenga, Gail (2007).Origins of the French Revolution. History Compass. 5, 12941337
xv
Hunt, p. 128-132
xvi
Heuer, Jennifer (2007).Liberty and Death: The French Revolution. History Compass.
5, 175-200.
xvii
Doyle, William (1989). The Oxford History of the French Revolution, pp.73-74
xviii
Mignet, Francois-Auguste (1824). History of the French Revolution from 1789 to
1814.
xix
Washington University in St. Louis, (2007). Dred Scott Chronology. Retrieved
October 9, 2008, from Dred Scott Case Collection Web site:
http://library.wustl.edu/vlib/dredscott/chronology.html
xx
Gough, Hugh (1998). The Terror in the French Revolution, New York, New York:
Palgrave Mcmillan p.77.
xxi
Hunt, p. 139
xxii
Etcheson , Nicole (2007).Teaching and Learning Guide For: The Origins of the Civil
War. History Compass. 5, 1439-1440.
xxiii
PBS, (2003). Q&A: Civil Rights during Reconstruction. Retrieved October 9, 2008,
from Reconstruction: the Second Civil War Web site:
http://www.pbs.org/wgbh/amex/reconstruction/activism/sf_rights.html
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xxiv
xxv
xxvi
16
Hunt p. 194
ibid
xxvii
Raeburn, Antonia, Militant Suffragettes.London: New English Library, 1973
Tomaselli , Sylvia (2008). Mary Wollstonecraft. Retrieved October 9, 2008, from
Stanford Encyclopedia of Philosophy Web site:
http://plato.stanford.edu/entries/wollstonecraft/
xxviii
Hunt p. 182
xxix
Hunt p. 191
xxx
Condorcet, Marie Jean Antoine Nicolas de Caritat On the admission of women to the
rights of citizenship. (1790, July).
xxxi
Department of Public Information, UN Milestone. Retrieved October 9, 2008, from
United Nations Web site: http://www.un.org/aboutun/milestones.htm
xxxii
ibid