10 Evolution of the Right to Life

Prof. Abhishek Sudhir

1. Learning Outcomes

The purpose of this chapter is:

• To demonstrate an understanding of the normative and historical origins of the fundamental right to life and personal liberty;
• To help the students understand the manner in which the right to life and personal liberty has developed gradually through political and apolitical discourses.

2. Introduction

Tracing itself back to foundations in religion and morality, the right to life is based on the belief that every human being has the innate, fundamental right to live and this right should not to be unjustly restricted or curbed by another human being or the State. The concept of a right to life finds itself central to debates on the issues of euthanasia, capital punishment, abortion, self-defence and war. This module traces the historical development of the right to life by chronicling developments pre and post the American Revolution.

3. Developments Pre-dating the American Revolution

3.1 Poljica Statute

The history of the right to life can be traced back as far as to the Statute of the Prinicipality of Poljica in the 1440s. Acting as an edifice to the wish of the people of Poljice, the Poljica statute was enacted to ensure independence from the Kingdom of Croatia and the Republic of Venice. The Statute serves as the starting point of the discussion human rights. For the first time, the human right to life was recognised under the Poljica Statute with the words that everyone withheld a right to live “for nothing existed since ever.”

3.2 Magna Carta

In 1215, after King John of England violated a number of ancient laws and customs by which England had been governed, his subjects forced him to sign the Magna Carta, which enumerates what later came to be thought of as human rights. Among them was the right of the church to be free from governmental interference, the rights of all free citizens to own and inherit property and to be protected from excessive taxes. It established the right of widows who owned property to choose not to remarry, and established principles of due process and equality before the law. It also contained provisions forbidding bribery and official misconduct. Widely viewed as one of the most important legal documents in the development of modern democracy, the Magna Carta was a crucial turning point in the struggle to establish freedom.

3.3. Petition of Right

The next recorded milestone in the development of human rights was the Petition of Right, produced in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties. Refusal by Parliament to finance the king’s unpopular foreign policy had caused his government to exact forced loans and to quarter troops in subjects’ houses as an economy measure. Arbitrary arrest and imprisonment for opposing these policies had produced in Parliament a violent hostility to Charles and to George Villiers, the Duke of Buckingham. The Petition of Right, initiated by Sir Edward Coke, was based upon earlier statutes and charters and asserted four principles: (1) No taxes may be levied without consent of Parliament, (2) No subject may be imprisoned without cause shown (reaffirmation of the right of habeas corpus), (3) No soldiers may be quartered upon the citizenry, and (4) Martial law may not be used in time of peace.

4. Developments since the American Revolution

4.1 American Declaration of Independence

Having paved the path of recognition of the innate human right to life, the next mention of the right is seen in the year 1776 with the American Declaration of Independence, which was approved by the United States Congress on July 4. Philosophically, the Declaration stressed two themes: individual rights and the right of revolution. These ideas became widely held by Americans and spread internationally as well, influencing in particular the French Revolution.

The American Declaration of Independence states:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are life, liberty and the pursuit of happiness.”

4.2 Bill of Rights

Written during the summer of 1787 in Philadelphia, the Constitution of the United States of America is the fundamental law of the US federal system of government and the landmark document of the Western world. It is the oldest written national constitution in use and defines the principal organs of government and their jurisdictions and the basic rights of citizens. The first ten amendments to the Constitution—the Bill of Rights—came into effect on December 15, 1791, limiting the powers of the federal government of the United States and protecting the rights of all citizens, residents and visitors in American territory.

The Bill of Rights protects freedom of speech, freedom of religion, the right to keep and bear arms, the freedom of assembly and the freedom to petition. It also prohibits unreasonable search and seizure, cruel and unusual punishment and compelled self-incrimination. Among the legal protections it affords, the Bill of Rights prohibits Congress from making any law respecting establishment of religion and prohibits the federal government from depriving any person of life, liberty or property without due process of law. In federal criminal cases it requires indictment by a grand jury for any capital offense, or infamous crime, guarantees a speedy public trial with an impartial jury in the district in which the crime occurred, and prohibits double jeopardy i.e. an individual cannot be tried twice for committing the same offence.

4.3 Declaration of the Rights of Man and the Citizen

The declaration of the right to life as an unalienable human right inspired many political texts and Constitutions. Most prominent of them was the Declaration of the Rights of Man and of the Citizen that was passed by France’s National Constituent Assembly in August 1789. A fundamental document of the French Revolution, the Declaration of the Rights of Man and of the Citizen came at a critical point in the history of human rights insomuch as it was the first instance wherein civil and political rights were concretised. While the concepts in the Declaration were heavily influenced by the philosophical and political duties of the Enlightenment, the general will and the social contract was theorized by the French philosopher Rousseau, and the separation of powers espoused by the Baron de Montesquieu. The French Declaration is heavily influenced by the political philosophy of the Enlightenment, by Enlightenment principles of human rights, and with the U.S. Declaration of Independence which preceded it (4 July 1776). Thomas Jefferson, primary author of the U.S. Declaration of Independence, was at the time in France as a U.S. diplomat, and worked closely with Lafayette in designing a bill of rights for France.

In 1789 the people of France brought about the abolishment of the absolute monarchy and set the stage for the establishment of the first French Republic. Just six weeks after the storming of the Bastille, and barely three weeks after the abolition of feudalism, the Declaration of the Rights of Man and of the Citizen (French: La Déclaration des Droits de l’Homme et du Citoyen) was adopted by the National Constituent Assembly as the first step toward writing a constitution for the Republic of France. The Declaration proclaims that all citizens are to be guaranteed the rights of “liberty, property, security, and resistance to oppression.” It argues that the need for law derives from the fact that “…the exercise of the natural rights of each man has only those borders which assure other members of the society the enjoyment of these same rights.” Thus, the Declaration sees law as an “expression of the general will,“ intended to promote this equality of rights and to forbid “only actions harmful to the society.”

Some of the Articles that formed a part of the Declaration were:

1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.
3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.
4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

4.4. The First Geneva Convention

In 1864, sixteen European countries and several American states attended a conference in Geneva, at the invitation of the Swiss Federal Council, on the initiative of the Geneva Committee. The diplomatic conference was held for the purpose of adopting a convention for the treatment of wounded soldiers in combat. The main principles laid down in the Convention and maintained by the later Geneva Conventions provided for the obligation to extend care without discrimination to wounded and sick military personnel and respect for and marking of medical personnel transports and equipment with the distinctive sign of the red cross on a white background.

4.5 Article 3 of the Universal Declaration of Human Rights (UDHR)

The Chinese Representative in the Third Committee of the 1948 UN General Assembly, Mr. Chang proposed a conceptual framework in which the initial three articles of the UDHR expressed the three main ideas of eighteenth century philosophy. Article 1 expressed the idea of fraternity; Article 2 expressed the idea of equality; and Article 3 expressed the idea of liberty. Article 3 thus sets forth a basic principle which is defined and elaborated in the nine following articles. In Articles 4-11, the idea of life and liberty is gradually and progressively enlarged.

The wording of UDHR Article 3, like that of most other provisions in the Declaration, describes the legal position of the individual of this inherent right rather than as the reflex of a State obligation to not interfere with the integrity of an individual. A general topic characterising the negotiations in the Third Committee, which also affected the deliberations of other provisions, was the Soviet contention that the UDHR should necessarily include the duties of the State.

Article 3 gives everyone the right to “life, liberty and security of person”. At an earlier stage of deliberations the right to life and liberty was qualified with the phrase, “except in cases prescribed by the law or after due process.” Dr. F.R. Bienenfeld speaking for the World Jewish Congress pointed out that the clause did not specify what the nature of the law is which he felt was a dangerous omission for under the Nazi regime, thousands were deprived of their right to life and liberty under laws that were perfectly valid. Primarily as a result of this plea, the qualifying state reference was dropped. The members of the Human Rights Commission knew about the horrors perpetrated by the Nazi State in and outside of the concentration camps. The Secretariat had prepared a special report on war crimes trials which detailed many of the Nazi crimes and the criminal charges to which they led. Pertinent to Article 3’s right to life, liberty and security of person is the report’s reference to “the policy which was in existence in Germany by the summer of 1940, under which all aged, insane and incurable people, ‘useless eaters’ were transferred to special institutions where they were killed. Most of the 275,000 people killed this way in nursing homes, asylums and hospitals had been German citizens.

This information inspired amendments which were not adopted but which show that the war experience lies just below the text of Article 3. It led the Chilean Delegation to propose as an amendment the statement that “unborn children, incurables, mentally defectives and lunatics shall have the right to life.” In the Third Committee, the Cuban delegation wanted to add the “right to personal integrity” to Article 3 because of the “terrible events that had taken place during the war when human beings had been used as surgical experiments.” The other delegates thought this idea was already included in the “security of a person”. The delegation from Uruguay proposed that the right to one’s honour be added to the Article. “Such mention would be particularly welcomed by Jews and by all who had suffered indignities at the hands of the Nazis.” This right is included in Article 12. Recounting the experiences of ‘cheapness of life’ at the hands of the Nazi, Count Carton de Wiart, the Belgian delegate said that “it was more than necessary to affirm the right of life as the right had so gravely been violated by the Nazis.” Salomon Grumback, the French delegate, agreed in verbatim.

It stands to reason that it was not just the Nazi atrocities that fed into the reiteration of the rights to life and liberty. Life was cheap to others too. In the Third Session of the Commission and in the Third Committee, Pavlov, the USSR delegate attacked the British colonial policies and made reference to the lynching of African Americans in the United States. Christopher Mayhew, a U.K. delegate responded with a long statement about the Russian concentration camps set up by Stalin, about which the Russian Government was being very silent. He said: “The war had taught the world a terrible lesson; the discovery of the concentration camps in Nazi Germany had proved that it was possible for a totalitarian State to conceal its own activities from its own population and even its officials and that once a State resorted to police methods, it could no longer stop.”

5. Conclusion

This module has sought to introduce the reader to some of the landmark events in human history that helped shape an individual’s inalienable right to life and personal liberty. What began with the Magna Carta culminated with the express recognition by several member States of the United Nations: all men and women have the right to life, security and liberty of person.

• Hugo Bedau, The Right to Life, The Monist, Vol. 52, No. 4, Human Rights (OCTOBER, 1968), pp. 550-572.
• George P. Fletcher, The Right to Life, The Monist, Vol. 63, No. 2, Crime and Punishment: Philosophical Issues (APRIL, 1980), pp. 135-155
• Rupert Emerson, The Fate of Human Rights in the Third World, World Politics, Vol. 27, No. 2 (Jan., 1975), pp. 201-226.
• Joanna Weschler, Some thoughts about Article Three of the Universal Declaration of Human Rights, Institut de Drets Humans de Catalunya.
• United Nations Regional Information Centre for Western Europe, History of the Universal Declaration of Human Rights, Available at: http://www.humanrightseducation.info/hr-materials/the-universal-declaration-of-human-rights/220.html
• Yale Law School Lillian Goldman Law Library, Declaration of the Rights of Man – 1789, Available at: http://avalon.law.yale.edu/18th_century/rightsof.asp
• Human Rights in the US and the International Community, The French Revolution and
• the Declaration of the Rights of Man and the Citizen, Available at: http://www.unlhumanrights.org/01/0102/0102_09.htm
• A Brief History of Human Rights, Available at: http://www.humanrights.com/what-are-human-rights/brief-history/declaration-of-human-rights.html