The Origin of Fundamental Rights

The humanities do not have well-defined milestones regarding the creation of ideas. These, naturally, evolve from discussions among contemporaries and materialize gradually. The same occurs with human rights: throughout history, it is always possible to see glimpses of them, but not with the same contemporary connotation. However, it is extremely decisive as the origin of fundamental rights.

For example, the English historian Ian Mortimer, in his book "Centuries of Transformation," recounts how the Catholic Church abolished the institution of slavery in the territories of Christendom, mainly in the West. In fact, the Synod of London contains a direct declaration for the end of the trade: "(...) no one should ever again practice the infamous business, prevalent throughout England, of selling men like animals."

The best interpretation is that of the French jurist Michel Villey, who understands fundamental rights as a product of modern philosophy originating in the 17th century, which, in turn, is inspired by theological sources and biblical studies. This choice is not arbitrary. With the gradual secularization of philosophy, the analysis of rights gains new horizons. Not rights intrinsic only to Christians, but rights for peoples in an indeterminate way, which should be respected by their respective States.

Here is one of the main characteristics of contemporary human rights: the possibility of being invoked beyond a national legal system. It is an intrinsic right of the human being, which must be protected by States, as well as by transnational organizations, such as the UN.

The most famous declaration of human rights is the one forged in the heat of the French Revolution of 1789. It is the Declaration of the Rights of Man and of the Citizen. This historical document lists basic guarantees. However, as historian Hobsbawm very well observed, in reality, these rights, although proclaimed to be for everyone, were limited to protecting the interests of the bourgeoisie—more specifically, as the contemporary thinker of the revolution, Olympe de Gouges, rightly observed—for the bourgeois man, not for women, regardless of class.

How are human rights expanding?

The shortest answer to the question is that human rights expand as history evolves, more specifically, in line with social concerns. For the most part, human rights are not born in the abstract, without social relevance; rather, it is only from the fears and concerns of society that these rights emerge.

In France in 1789, there was great concern for basic citizen freedoms, such as the right to freedom of expression, since any criticism of the monarchy could be seen as an act of treason and immediately censored. Similarly, there was great concern for property rights, which were constantly violated by the Old Regime and its suffocating taxes. The revolutionaries also had great desires for greater political participation, with the limitation of royal power—precisely as a way to prevent the tyranny experienced by the Third Estate.

Amidst these concerns, the revolutionaries formulated the human rights that we currently categorize as first-generation or first-dimension fundamental rights, which are rights related to freedom in its broadest sense: freedom of expression, movement, contract, as well as political rights and property rights. Therefore, first-generation human rights are intrinsically linked to the demands of their time, the French Revolution, and especially to the appeals of the intellectual and financial bourgeois elite.

The State that originates based on first-generation fundamental rights is extremely passive; it limits itself to not interfering in the private spheres of its citizens. This worked well until massification, accompanied by humanitarian crises stemming from the wars that devastated Europe: the First and Second World Wars.

In this context, political rights, freedoms, and property rights were no longer sufficient to meet the aspirations of society. The creation of new human rights became imperative, rights that would allow people to rebuild and prosper. These new rights, which we call second-generation or second-dimension human rights, are related to social, economic, and cultural aspects.

This then gives rise, for example, to social security, which aims, among other functions, to guarantee a minimum livelihood for disabled people, as well as for the elderly who can no longer provide for their own sustenance. Similarly, there is greater state intervention in the economy, with the aim of safeguarding social interests, but not to the point of harming or making private activity unviable.

The State that originates from second-generation human rights is characterized by a proactive attitude. It is no longer a merely passive State, with obligations of non-interference, but one with active obligations and a duty to act in essential aspects of society.

Due to concerns about nature—closely related to the recurrence and widespread nature of natural disasters—as well as concerns about preserving history and artistic monuments, third-generation and third-dimension human rights have emerged.

Finally, given technological advancements, we can say that we are at the dawn of fourth-generation human rights, which focus on technology, especially the internet. Virtual spaces are growing in importance, to the point of surpassing even public spaces of physical interaction. Therefore, in this new reality, it is imperative to establish new fundamental rights for internet users.

Furthermore, if you'd like to stay informed about discussions regarding digital rights, I recommend reading our IDP blog—specifically, the article " Constitution and Internet: what needs to be discussed today? ". This article addresses the very source of discussions on internet regulation and situates the reader within this essential topic.

Conclusion: Human rights as products of their time.

One cannot expect a person in the 18th century to have conceived of the possibility of rights over the internet, or over nature and culture. Simply put, such concerns were not prevalent at that time. The concerns of the French revolutionaries of the 18th century were completely distinct from the concerns of people living in post-war Germany.

As observed throughout the exhibition, human rights expand in accordance with social reality. They do not arise abstractly and without historical context, but originate from needs and empirical observations of reality. This is why it is important to historically contextualize these rights.

Another crucial point to highlight is that the evolution of human rights is by no means a replacement of one generation by another. The new human rights of each generation integrate previously existing human rights within a constantly expanding framework.

There is another interesting characteristic of human rights, which is their adherence to democracies and how the collapse of these democracies causes a retreat in human rights. Equally interesting is analyzing democratic waves. The term "wave" is intentional, since, with some regularity, we see an expansion and contraction of democracies around the world.

These topics are extremely important and will likely be covered on the IDP blog. However, if you can't wait for our article on these topics, please don't waste any time in enrolling in our postgraduate courses—both specialization and master's programs. IDP boasts a range of highly qualified professors with extensive experience in the job market. It's the perfect combination of theory and practice.

We encourage postgraduate studies not only for studying and staying up-to-date—which is essential in the job market—but also to enable the study and creation of new theories and portrayals of reality. Therefore, to become a researcher, don't waste time and enroll at IDP.

References:

VOLVELLE, Michel, The French Revolution 1789–1799 , 2nd ed. rev. – São Paulo: Editora Unesp, 2019

VILLEY, Michel, Questions of Thomas Aquinas on Law and Politics . 1st ed. São Paulo: Editora WMF Martins Fontes, 2014.

MINOIS, George. History of the Middle Ages: a thousand years of splendor and misery. 1st ed. São Paulo: Editora Unesp, 2023.

HOBSBAWN, Eric J. The Age of Revolutions 1789-1848 . 6th ed. Rio de Janeiro: Paz e Terra, 1977.

MENDES, Gilmar Ferreira, Course on Constitutional Law . 15th ed. São Paulo: Saraiva Educação, 2020.

MORTIMER, Ian, Centuries of Transformation: In a Thousand Years of History, Which Century Underwent the Most Change and Why Is It Important ? 1st ed. Rio de Janeiro: Difel, 2018.