Human rights - Research Paper Example

Human Rights Human Rights can be understood as those underlying standards without which individuals cannot live in proper dignity as human beings. Human rights are specific moral guarantees that societies across the globe must respect as universal rights. These guarantees are termed “rights” which suggests that they can be invoked and that compliance with them is necessary rather than discretionary. In any organized construct of legal rights there exist three central roles: the rights holders, the duty bearers, and the agents of accountability (Freeman, 2002). The function of these stakeholders it work to ensure that duties are fulfilled and that obligations are performed to those who enjoy the legal rights. If this does not occur, the system must allow for redress via some institutional format to ensure that right-holders are not being abused. This check and balance system allows for the full panoply of rights and entitlements to be protected in the society. The current international human rights system functions on this overall model, though countries all over the world often have issues ensuring that this accountability stem is enforced. This paper will discuss general human rights concepts and then focus on individual cases to illustrate their importance. It is only by understanding how rights can be subverted that a proper defense can be enacted both in democratic and authoritarian regimes. The current international human rights paradigm emerges from the Universal Declaration of Human Rights of 1948. This supra-national charter focused on the specific principles and goals of international human rights legislation and has served to guide the behavior of nations. (Beitz, 2009) The Declaration lays out the structure of rights system and describes the mechanisms that must exist within institutions. What this means is that a legal system can be understood as a control system which is instrumental in controlling and regulating the actions of its individuals. Yet, there is also an urgent necessity to restrain government in its wielding of power to avoid civil liberty and human rights abuses (Glendon, 2001). Therefore, a mechanism must exist to ensure proper redress within an institution or society to protect this vital but delicate balance. Examples of the fragility of this balance are plentiful. While many societies will agree that for instance freedom of assembly is guaranteed in many situations the government and police have failed to protect this right. It is only via effective rights that the mechanisms of power exist for these social actors to be held to account and for decisions to be make which defend human rights. In modern societies legal rights are dependent on there exist three central stakeholders: the rights holders (citizens), the duty bearers (police) and the institutional agents of accountability (the courts/representatives). The function of this social construct is to ensure that legal duties are performed and that obligations are fulfilled to those who enjoy the legal rights (Donnely, 2003). It is not a simple feat for the sociologist to accurately describe any society’s rights system. To do so, one must understand: 1) The specific nature of the citizens and the rights they enjoy and value; 2) The perspective and goals of the police and their duties in relation to the rights of the society; and 3) The role and intentions of the institutions of accountability and the avenues via they protect the citizens and duty bearers in the overall rights system (Freeman, 2002). This characterization of rights system though useful in the setting of national human rights systems can be used to analyze a variety of institutional arrangements, from prisons to universities to hospitals. This paper will continue to discuss rights, obligations and accountability mechanisms and provide specific example to illustrate their importance and how often they are subverted with unfortunate results. A. Legal Rights It is important to begin any discussion of social rights with the acknowledgment that not all rights in a society are human rights. What do human rights mean? Human rights can be distinguished from other rights by their universal applicability and their intrinsic nature to human dignity. rights. The preamble of the Universal Declaration of Human Rights states that, "Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” All rights in an effective rights system are theoretically enforceable claims (Ishay, 2008). Any citizen can protect that the government must recognize their dignity by doing or not doing certain actions. This thinking on human rights flows from the virtue of one being a human being, despite one’s ethnic, gender or national background, and therefore inalienably entitled to legal protection. Regarding local rights, there can be significant variation from region to region. For example, there is a right to marry more than one wife in certain countries but also equally bans on this practice. It would be difficult to argue that polygamy is a human right (Glendon, 2001). In short, to properly understand human rights one must recognize that not all rights fall into this category. A further important distinction must be made regarding soft rights and hard rights. A “soft” right is not inherently defined in the legal framework. These principles existed in the legal thinking of a society. For example, The Universal Declaration of Human Rights, is one of the most influential pieces of international law despite its non-binding nature and complete lack of implementation or correctional abilities. Its entire influence stems from its persuasive cogent articulation of the near universal imperative: Do the right thing (Sepulveda, 2004). In contrast, hard rights are specifically described in a nation’s legal architecture, with an articulation of both their implementation and mechanisms of protection. Agencies often exist which are given the duty of carrying out these hard rights and ensuring their protection (courts, police, congressional committees). Furthermore, when a hard right is violated there exist means of recourse for a citizen to ensure that their redress is achieved and those responsible held accountable as understood by a country’s case law and historical precedent. The evolving standards of a society are highly influential in legal interpretation, however human rights as a universal standard helps ensure that the interpretive legal decisions reached by one society may help improve the human rights situation around the world. This discussion of the evolution of the legal system raises the question of the realization of legal rights in a society. A clear distinction must be made between a citizen having a right and having that right protected by the legal system. A historical example of this issue can be seen in the prohibitive Jim Crow legislation in the American South which took away the Constitutional rights of African-Americans to free speech, vote, assemble and seek legal redress (Beitz, 2009). It was only through decades of struggle that the system finally allowed for these rights to be realized. While all human beings have human rights in principle there is unfortunately tremendous variation in implementation worldwide. It is essential that Human Rights articulated in international human rights legislation be enacted and enforced on the national level via concrete rules, enforcement and avenues of protected legal redress. B. OBLIGATIONS When discussing rights, it is critical that one focus on the institutions which exist and have a duty to defend those rights. The nature of this duty can be understood via three different types or levels of obligation as non-interference, facilitation and provision. An example of a violation of rights can be seen in the 1896 American Supreme Court case Plessy vs. Ferguson which stated that black and white citizens may be treated differently although they were still viewed as equal. Although the majority of citizens in the second half of the 19th century believed that whites were superior to Blacks, the court made a human rights-violating decision in Plessy vs. Ferguson, and supported Jim Crow laws (laws that separated blacks and whites in toilets, restaurants, public places, and schools). In his dissent Justice Harlan argues for an equal obligation to enact the law stating, “Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved” (Donnely, 2003)). In short, effective rights legislation must clearly define not only the right itself but also about the specific duties of the duty bearers. (The term law here is taken to include implementing statutes, administrative rules, etc.) Harlan eloquently articulates the obligations that the duty bearer’s commitments entail. In a properly functioning rights system, those who have specific duties must understand them. Just as citizens must know their rights, the agents responsible for the protection of those rights, the duty bearers, must be aware of their duties. C. ACCOUNTABILITY MECHANISMS Above both citizens and those who enact their rights are those institutions which exist to protect rights. If the law says that people have a particular right, the duty for assuring the realization of that right should be assigned to some specific agency. In addition to identifying the duty bearer, the law should also provide for some sort of institutionalized accountability mechanism to assure that the duty-bearing agency does what it is supposed to do (Beitz, 2009). There should be explicit standards against which the accountability agency evaluates the performance of the duty-bearing agency. If the rights-holders entitlements are not clear and widely recognized and accepted, it will be difficult to hold the duty-bearing agency to account for failures to fulfill those rights. Criminal Justice System as Human Rights Case Study There are many different aspects of legal rights enforcement. An example discussion can be had regarding human rights and the Canadian criminal justice system. The Classical School of criminology is a theory about evolving from a capital punishment type of view to more humane ways of punishing people. Positivist criminology is maintaining the control of human behavior and criminal behavior (Freeman, 2002). They did this through three different categories of Biological studies, which are five methodologies of crime that were mainly focused on biological theories, Psychological theories, which contains four separate theories, and the Sociological theories, which also includes different methods of explaining why crime exists in a human rights context. The Classical School of legal thought was founded by European legal authorities that thought crime was caused by supernatural forces (Donnely, 2003) preceding the 1700s. The catch phrase "The devil made him do it" was very popular because of the thought that people who committed crimes were sinners or people who didnt follow God. Those who didnt follow God were known as heretics and this following led to the connection of church and state where torture or execution could happen to anyone that the government thought to be evil or a part of witchcraft. Since the Middle Ages didnt have equal rights for all, women and the poor were usually the ones being prosecuted. With all of the problems of the times, the government found and made scapegoats out of these people, and blamed them of the troubles that were occurring. As Ishay (2008) states, "the most common way of determining guilt was through torture. It was a simple system: if you confessed, you were executed: is you did not confess, the torture continued until you died." This system of killing people was a well-respected way of running the criminal justice system. As time passed, the punishments turned away from inflicting pain on the body and turned towards inflicting pain. A very important theorist in the Classical School of thought is Cesare Beccarria. He was a modest man who wrote an essay called On Crimes and Punishment. It was published as an anonymous essay at first that was so successful, that a second printing was done and he then put his name on it and it became an even greater success. It was so great that the publisher translated it into many different languages, and was distributed to top public officials and government throughout Europe, Asia, and America. It became very influential in the fight to reform and develop new laws and protect human rights (Sepulveda, 2004). The Classical School of the modern times still plays a major role in the context of human rights and the criminal justice system. The "Get tough on crime" policy is still around today because of theorists view to keep punishments to the least amount of punishment as possible to try and prevent crime (Beitz, 2009). Yet today, critiques still exist with this theory as with any other theories. The first is that of the cost/reward analysis and deterrence. In one study it was found that criminals do not evaluate the negative consequences of their actions (Donnely, 2003). The act of getting caught never crosses their mind because the threat of committing the crime is enough to keep them from thinking about the consequences. Therefore, those criminals that commit crimes that are under the influence of drugs or any other substance are even less rational about the consequences than those who commit crimes. Another critique is that of the punishment and deterrence theory. These theorists feel that being imprisoned for a crime can and will deter more crimes of the like. Prisons for example, are a dominant sense of making the country feel safer because the criminals are being locked up. Also, the death penalty can be a form of deterrence towards other criminals because they are able to see what is happening to other criminals that commit the same types of crimes. The Positivist School of legal rights began in the late 19th century and is still a part of society today (Ishay, 2008). The Positivist School suggests that in order to control crime, you have to use scientific methods to look for the causes of crime. Some important developments the theory included were controlling human behavior, controlling criminal behavior, industrial revolutions, the emergence of modern science, and finally Darwins theory of evolution. Many assumptions had been made, but a few in particular stood out to be the most important. Theorists said that human nature is determined before you are even born. Also that it is differentiated which means that criminals are different from non-criminals. The five methodologies are based on biological characteristics that may cause the criminals to commit the crimes they based on certain characteristics. The first method is physiognomy. This judges character by facial features as well as physical features. It can be traced back to Ancient Greece and Rome (Ishay, 2008). The second is phrenology. This judges the criminals intelligence and character based on the different shapes of the skull. This method was popular in the early to mid 1800s. Thirdly, criminal anthropology studied the criminal human beings from birth. Lombrosos theory of the biological impact on crime and rights violations was heavily influenced by Darwins study of evolution. Lombroso, the "father of positivist criminology" believed he could study human behavior and then locate some factors that may cause a pattern of crime in the person. These people who committed such violent crimes were known as atavistic because of their physical features resembling that of animals (Donnely, 2003) Hereditary studies were also compared and contrasted, but no real evidence was found to make the study signify success. Some criticisms of the Biological theories is that there are inadequate controls of environmental factors that had an effect on these studies. Also, that correlation is not causation because no criminal behavior can be inherently criminal. Psychological theories of crime include intelligence, psychoanalytic, personality disorders, and humanistic theories. Intelligence theories connect to the Biological theories because of numerous studies done that showed correlation to the amount of intelligence a person has also has to do with the possible size of the body as well as other features on the body. Psychoanalytic theories are based on the work of Sigmund Freud. He said that crime is a symptom of deep-seated problems that dont balance the Id, Ego, and Superego. This is where psychopaths and sociopaths get their name from because they cant balance any of these together. Personality disorders deal with the different characteristics of a person internally. It was stated in class that criminals have different personality traits than non-criminals. Criticisms of Psychological rights theories include that most criminals are mentally ill and cant account for their actions because violence is selective (Sepulveda, 2004). Sociological theories are based on the views that human behavior is determined and that social order is consensual. The Ecological theory is based mainly on the Chicago School of thought. It shows that social disorganization causes crime. Subcultural and Learning theories suggest that crime is caused by learning and conforming to deviant subcultures values. Anomie and Strain theories suggest that inequality among different groups of people causes crime because of the oppression faced among many different groups of people. Control Theories state that strong bonds to society cause conformity which in turn leads to weak bonds causing deviance and delinquency. The example of this criminological theory on human rights is invaluable in answering these questions as it takes a unique perspective on the criminal justice system and human rights protection around the world. It points out that many of those involved in deciding the fate of offenders lack the ability to understand that criminals, especially psychopathic ones, are not even playing on the same gameboard as the rest of society. The experience clearly shows the care one must take in analyzing the ability of offenders to function non-criminally in the world outside of an institutional setting. This theory on how the offender develops his peculiar viewpoint of the world is, however, seriously deficient. He simply accuses the criminal of having developed his narcissistic personality from the moment of birth unaided in any manner by family or society. On the other hand, his treatment of the offender relies strictly on behavior modification and his prevention of the development of criminal minds also stresses good parenting skills and a more responsive society. He contradicts himself in his confusion of nature versus nurture versus individual responsibility. None of us has the exact answer in this matter and would be better off not trying to make any conclusions in an area in which he lacks a comfortable argument. Regardless of this downside, the work is an extremely good resource for understanding the working of the legal institution as it relates to personal rights. A patient and careful review of previously published ethnographic accounts of law breaking as it relates to right. To reconstruct why someone seeks to violate the legal framework in the moments leading up to the crime is important to understand. He takes us inside the criminals head, where many readers will feel alarmed to discover that seemingly senseless crimes sometimes do indeed exert a strong sensual attraction. Now, to say that crime is motivated by sensual attraction is not to say that it never makes sense from a materialist perspective, and it can be acknowledged that deviance often does serve practical purposes. He points out, for example, that the celebrity status of the "badass" assures a reliable source of sexual favors. There is also the irony that the ability to intimidate, which commands a variety of obvious material advantages, is most easily achieved by someone believed to be irrational. Lastly a new approach to understanding conflicts over human rights between citizens and legal authorities must be examined. His discoveries originated from his own extremely violent background. Athens claims that those who challenge legal authority know what they are doing and why. To the majority of us it is incomprehensible that anyone would commit such heinous acts with what appears to be little or no provocation. He shows, by example, how those who have gone through what he calls the four stages of violentization, think and react. Athens states that if an individual is interrupted at any stage before he or she has gone through the fourth stage of violentization, the individual can be reformed. However, once the fourth stage has been completed, there is no hope of redemption. Athens suggests how the cycle of violence can be broken through social support. An example of such an intervention can be seen in Dr. Athens own lifestory coming from an abusive household and in a violent neighborhood. His father routinely beat him and his brother but never touched his sisters. From an early age Athens developed a keen insight about violence including the fact that the behavior of abusive parents is often thoughtful and selective. Athens father once told him that if Athens ever ran from a fight then he would beat him senseless, but if stood his ground, the father would back him up all the way. In this instance, Athens father provided him with violent coaching. He trained his son through beatings, exposure to violence and direct training to survive in a violent world. Athens credits his escape from the cycle of violence to the chance intervention of friends and to his fortune at never having resorted to criminal violence in his youth. However, for the majority of those who are on the road to violentization and are not so lucky, society must intervene to protect other citizens human rights. In summary, the three legal theories consist of a spectrum when considered in a human rights context. This spectrum centers on to what degree nature vs. nurture plays in the origins of the criminal individual. The first argues that there is something fundamentally different with these individuals that makes them test the legal framework, while the later argue for a socially constructed and learnt behavior set that leads criminals to commit their misdeeds against society. It is only through studying and seeking to understand the motivation of citizens in relation to the justice system their rights be protected, effectively judged and managed. Human right should not be considered only a realm in developing countries but a careful examination of the criminal justice paints a picture of human rights issues that must be addressed at home. References Beitz, Charles R. (2009). The idea of human rights. Oxford: Oxford University Press. Donnelly, Jack (2003). Universal human rights in theory and practice (2nd ed.). Ithaca: Cornell University Press. Freeman, Michael (2002). Human rights : an interdisciplinary approach. Cambridge: Polity Press.  Glendon, Mary Ann (2001). A world made new: Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House. Ishay, Micheline R. (2008). The history of human rights: from ancient times to the globalization era. Berkeley, Calif.: University of California Press. Sepúlveda, Magdalena; van Banning, Theo; Gudmundsdóttir, Gudrún; Chamoun, Christine; van Genugten, Willem J.M. (2004). Human rights reference handbook (3rd ed. rev. ed.). Ciudad Colon, Costa Rica: University of Peace. Read More