Human Rights: Definition, History, and Principles

PERTANYAAN

There is a lot of talk on social media about human rights. I was wondering, what exactly are human rights? When did the concept of human rights emerge? Please explain.

INTISARI JAWABAN

Human rights are rights that are inherent in humans as creatures of God, inherent in humans since humans exist on earth, and cannot be eliminated. However, where did the idea of human rights come from? What is the history of the development of human rights and the basic principles of human rights?

Please take a look at the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Hak Asasi Manusia: Pengertian, Sejarah, dan Prinsipnya written by Renata Christha Auli, S.H. and published on Thursday, 21 July 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Human Rights

Human rights are basic or fundamental rights that humans have. Literally, the term human rights comes from the French "droits de 'I home", in English "human rights", and in Arabic "huquq al- insan". Human rights are rights that are inherent in human dignity as creatures of God, and human rights are carried since humans exist on earth, so human rights are natural and not given by humans or the state.[1]

Here are some opinions of experts on the meaning of human rights:

1. Baharudin Lopa

Human rights are rights given directly by God the Creator, i.e. rights that are natural.[2]

2. John Locke

Human beings since birth have had freedom and fundamental rights. These rights are life, liberty, and property. This right is a right that humans have naturally, inherent at the time of their birth, and human rights cannot be interfered with by anyone, and cannot be obtained or revoked by the state, except with the consent of the owner.[3]

3. Mariam Budiarjo

Human rights are rights possessed by humans that have been obtained and carried along with their birth and presence in community life. This right exists in humans regardless of nation, race, religion, class, gender, and is therefore basic and universal. The basis of all human rights is that all people should have the opportunity to develop in accordance with their talents and ideals.[4]

Also read: Know the Difference between Citizen Rights and Human Rights

History of Human Rights Development

A French jurist, Karel Vasak, divided the development of the substance of the rights contained in the concept of human rights. Karel Vasak used the term "generation" to indicate the scope of rights prioritized in a particular era. The generational categories were inspired by the slogan of the French Revolution, namely "liberty, equality and fraternity”.[5]

The following is the generational division of human rights according to Karel Vasak:

1. First Generation of Human Rights

Freedoms or rights of the first generation represent civil and political rights, i.e. human rights of a classical nature. These rights arose from the demand to escape the confines of state absolutism that emerged in the United States and France in the 17th and 18th centuries. The rights included in the first generation are the right to life, bodily integrity, the right to freedom of movement, the right to asylum from oppression, protection of property rights, freedom of thought, religion and belief, freedom of assembly and expression, freedom from arbitrary detention and arrest, freedom from torture, freedom from retroactive laws, and the right to a fair trial.[6]

Rights in the first generation are called negative rights, which refer to the absence of state interference with individual rights and freedoms. This right guarantees a space of freedom for individuals to determine themselves. In other words, the state should not play an active (positive) role towards individuals. If the state plays a role or intervenes, it can result in a violation of these rights and freedoms.[7]

2. Second Generation of Human Rights

The second generation of human rights embraces the principle of equality and represents protection for economic, social and cultural rights. These rights arise from the demand that the state provide for the fulfillment of the basic needs of every person, from food to health.

In contrast to the first generation, in the second generation of human rights, the state must act actively so that these rights can be fulfilled or made available. Second-generation rights are known in the positive language of "right to", not in the negative language of "freedom from". The rights recognized in the second generation of human rights are the right to work and decent wages, the right to social security, the right to education, the right to health, the right to food, the right to housing, the right to land, the right to a healthy environment, and the right to the protection of scientific, literary, and artistic works.[8]

The second generation of human rights are said to be "positive rights". This means that the fulfillment of rights requires the active role and involvement of the state. For example, to fulfill the right to work for everyone, the state must make economic policies that can create jobs. This is an example of the state's active role in fulfilling human rights.[9]

3. Third Generation of Human Rights

Fraternal or third-generation rights represent demands for solidarity or collective rights. These rights arise from the demands of developing or third-world countries for an equitable international order. Through the demand for solidarity rights, developing countries want an international economic and legal order that is conducive to guaranteeing the right to development, the right to peace, the right to their own natural resources, the right to a good environment, and the right to their own cultural heritage.[10]

Also read: Concept of Human Rights Used in Indonesia

Theories of Human Rights

Among legal scholars, there are 3 main theories that explain the origin of the idea of human rights, namely:

1. The Theory of Natural Law

The experts who are considered the most meritorious in defining the basis of the theory of natural law are John Locke and JJ Rousseau. John Locke put forward the idea that all individuals are endowed by nature with inherent rights to life, liberty and property, which are their own and cannot be revoked by the State. Through a social contract, the protection of inalienable rights is left to the state. If the ruler of the state ignores the social contract, then the people of that state are free to remove the ruler and replace him with a government that is willing to respect those rights.[11]

Slightly different from John Locke, JJ Rousseau asserted that natural law does not create individual natural rights but the sovereign rights of citizens as a whole. Any rights derived from a natural law will attach to the citizens as a whole. In essence, the theory of natural law sees human rights as born from God as part of human nature. When humans are born, human rights are inherent in them and they cannot be replaced or eliminated, regardless of their religious background, ethnicity, social class, and sexual orientation.[12]

2. Positivism or Utilitarian Theory

According to Jeremy Bentham, human existence is determined by the goal or utility of achieving happiness for the most people. The application of a right or law is determined by whether it provides the greatest happiness to the greatest number of people. Everyone has rights in principle, but these rights can be lost if they conflict with the happiness of the majority of others. This means that the interests of the individual must be subordinated to the interests of society. Because of this people-first view, positivism is also known as utilitarian theory.[13]

3. Justice Theory

The theory of justice was born out of criticism of the theory of positivism. The experts who came up with the theory of justice are Ronald Drowkin and John Rawls. Drowkin's theory argues that the state has an obligation to treat its citizens equally. This means that the state uses moral values, power, and other grounds as an excuse to override human rights, except for the principle of equal treatment. Meanwhile, according to Rawls, every individual has the same rights and freedoms. However, these rights and freedoms are often not enjoyed together. For example, there is a right for everyone to receive an education, but this right cannot be enjoyed by everyone due to poverty. To address this issue, Rawls introduced the difference principle, which states that equitable distribution of resources should be prioritized in society.[14]

Human Rights Principles

The following are some human rights principles proposed by experts:[15]

1. Universality, i.e. all people in all parts of the world, of any religion, any nationality, any language, any ethnicity, regardless of political or anthropological identity, and regardless of disability status, have the same rights.
2. Indivisible, i.e. everyone has an entire category of rights that cannot be divided.
3. Interdependent. In this principle, certain types of rights will always depend on other rights. For example, the right to work will depend on the fulfillment of the right to education.
4. Interrelated, i.e. a right will be related to other rights, such as the right to life, the right to express opinions, and the right to choose a religion, among others.
5. Equality requires equal treatment, where in the same situation should be treated the same, and where there is a different situation with little contention then treated differently.
6. Non-discrimination, where everyone must be treated and have equal opportunities before the law. When people are not treated or have unequal opportunities, then that is where discrimination occurs.
7. State responsibility, which is a principle that is then divided into the duty to respect, the duty to fulfill, and the duty to protect.

Also read: 3 Principal Obligations of States in International Human Rights Law

In conclusion, human rights are basic rights or fundamental rights that humans have, which are given by the Creator and are inherent since human birth, and cannot be eliminated by anyone, including the state. In studying human rights, of course we also need to understand the development of human rights marked by the emergence of the first, second, and third generations, with the slogans of freedom, equality, and fraternity. In addition, there are 3 main theories that explain the origin of human rights thinking, namely the theory of nature, positivism, and justice. Finally, we also need to understand the various principles of human rights, including universal and indivisible human rights.

This is our answer, hopefully, you find it useful.

References:

1. Firdaus Arifin, Hak Asasi Manusia: Teori Perkembangan dan Pengaturan, Yogyakarta: Penerbit Thafa Media, 2019;
2. Rhona K.M. Smith, Hukum Hak Asasi Manusia, Yogyakarta: Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia, 2008;
3. Serlika Aprita (et.al), Hukum dan Hak Asasi Manusia, Jakarta: Mitra Wacana Media, 2020;
4. Sri Rahayu Wilujeng, Hak Asasi Manusia: Tinjauan dari Aspek Historis dan Yuridis, Jurnal Humanika, Vol. 18, No. 2, 2013.

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[1] Firdaus Arifin, Hak Asasi Manusia: Teori Perkembangan dan Pengaturan, Yogyakarta: Penerbit Thafa Media, 2019, p. 1.

[2] Firdaus Arifin, Hak Asasi Manusia: Teori Perkembangan dan Pengaturan, Yogyakarta: Penerbit Thafa Media, 2019, p. 2.

[3] Firdaus Arifin, Hak Asasi Manusia: Teori Perkembangan dan Pengaturan, Yogyakarta: Penerbit Thafa Media, 2019, p. 5.

[4] Sri Rahayu Wilujeng, Hak Asasi Manusia: Tinjauan dari Aspek Historis dan Yuridis, Jurnal Humanika, Vol. 18, No. 2, 2013, p. 2.

[5] Rhona K.M. Smith, Hukum Hak Asasi Manusia, Yogyakarta: Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia, 2008, p. 14.

[6] Rhona K.M. Smith, Hukum Hak Asasi Manusia, Yogyakarta: Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia, 2008, p. 15.

[7] Rhona K.M. Smith, Hukum Hak Asasi Manusia, Yogyakarta: Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia, 2008, p. 15.

[8] Rhona K.M. Smith, Hukum Hak Asasi Manusia, Yogyakarta: Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia, 2008, pp. 15-16.

[9] Rhona K.M. Smith, Hukum Hak Asasi Manusia, Yogyakarta: Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia, 2008, p. 16.

[10] Rhona K.M. Smith, Hukum Hak Asasi Manusia, Yogyakarta: Pusat Studi Hak Asasi Manusia Universitas Islam Indonesia, 2008, p. 16.

[11] Serlika Aprita (et.al), Hukum dan Hak Asasi Manusia, Jakarta: Mitra Wacana Media, 2020, p. 72.

[12] Serlika Aprita (et.al), Hukum dan Hak Asasi Manusia, Jakarta: Mitra Wacana Media, 2020, p. 72.

[13] Serlika Aprita (et.al), Hukum dan Hak Asasi Manusia, Jakarta: Mitra Wacana Media, 2020, p. 73.

[14] Serlika Aprita (et.al), Hukum dan Hak Asasi Manusia, Jakarta: Mitra Wacana Media, 2020, pp. 73-74.

[15] Serlika Aprita (et.al), Hukum dan Hak Asasi Manusia, Jakarta: Mitra Wacana Media, 2020, p0. 76-79.