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Complementary Reflection, African Philosophy and General Issues in Philosophy |
HUMAN RIGHTS AND IMPLICATIONS IN COMPLEMENTARY REFLECTION
By Esssien Ephraim Stephen
CONTENTS
1.0 Introduction -- --- 1
1.1 Principle and Imperative of Complementary
Reflection 2
2.0 On Human Rights -- -- 4
2.1 Analysis of Rights -- -- 6
2.2 Human Rights and the Natural Law Theory -- 10
2.3 Monuments of Human Rights -- -- 34
2.4 Ideological Approaches to Human Rights -- 43
2.5 African Traditional Conceptions of Human
Rights -- 46
3.0 Implications of Human Rights in Complementary
Reflection-- 55
Works Cited -- -- 58
Every system has a method.
Every attempt at explaining and understanding reality, truly,
authentically ever remain rudderless if it is not anchored on a systematic
methodology (Asouzu, 2004: 271). The philosophy of antiquity gave philosophy a
method: rationalizing on nature, man and the foundation of reality. Commenting
on this, Nnoruka (1997) remarked that the importance of philosophy of antiquity
is that it gave philosophy a method, a modus, and that this is attested to by
the fact that for many centuries to follow doing philosophy became an
interpretation or reinterpretation of the works of the great thinkers of
antiquity.
Complementary reflection, while being anchored on true African
experience, seeks to reach out to the ultimate foundation of reality as a
universal philosophical task. Bearing this fact in mind, Asouzu establishes
that African philosophy in a complementary perspective is the systematic
ambient methodological reflection about reality with the aim of explaining and
understanding reality authentically in a way that portray the totality of the
factors and actors that influence the thinking of the thinker. This
means that complementary reflection
transcends the immediacy of traditional African ambience to include all the factors and actors that
are constitutive towards the emergence of the true and authentic nature of
reality. In this way, complementarism has a universal appeal and relies on a method of universal applicability for its
reflection. This systematic methodological
approach is like providing a key with
which to enter a building. Whoever has
this key has access to the contents of the room (Asouzu, 2004:271). Inspired by the ideas of traditional African
philosophers of the complementary orientation and relying on all useful
inspirations emanating from the complementary nature of reality in globo,
Asouzu presents the principle and imperative of complementarity.
1.1 The principle and imperative of
complementarity
Completementarism
contains two principles, the principle of integration and the principle of
progressive transformation (cf. Asouzu, 2003:58). Principle of integration serves a complementary ontology, while
the principle of progressive transformation is a theory of rational
praxis. Whereas the principle of
integration specifies the general metaphysical implications of the theory, the
principle of progressive transformation specifies the relevance of the theory
to human action.
The principle of integration as the metaphysical variant of the principle
of complementarity states, that anything that exists serves a missing link of
reality (Progress in metaphysics: The phenomenon of “missing Link” and
interdisciplinary communication (Asouzu, 1990:82 – 91). The practical variant states that all human
actions are geared towards the joy of being.
The principle of integration and the principle of progressive
transformation engender the imperative of complementarity which states: allow
the limitation of being to be the cause of joy. The imperative of complementarity is the condition for the
realization of the principle of complementarity in the relative and fragmented
moments of existence. Other wise
stated, allow all world immanent realities, in their fragmentation, to be the
cause of your joy.
When we say, “anything that exists serves a missing link of reality”
and “allow the limitation of being to be the cause of your joy” what do we
mean?
I begin with the latter. In the
first place, one must note that Asouzu employs the category ‘being’ here in its
traditional philosophical understanding as the unifying foundation of all
existent realities (271). By the
expression ‘limitations of being’, Asouzu affirms the fact that fragmentation
is a constitutive characteristic of being in history (273).
The experience of fragmentation as an integral part of historical
existence forms the methodological point of demarcation between all kinds of
extensive reasoning and complementary reasoning. Complementary consciousness harmonises fragmented world immanent
historical experiences in a manner that conveys authenticity to them
(277). Missing links in Asouzu are the
diverse units that make up an entity within the framework of the whole and as
they are complementarily related. They
are the imaginable units, fragments, components and combinations that enter
into our understanding of any aspect of reality. They are also all the units and combinations necessary in the
conceptualization of an entity or of the whole. They are thoughts and thoughts of thoughts, categories and categories
of categories, units and units of units, entities and entities of entities,
things and the things of things, ideas and the ideas of ideas (278).
Operating from his ambient, Asouzu is of the opinion that the idea that anything that exists serves a
missing link of reality reflects the central paradigm of the anonymous
traditional African philosophers of the complementary orientation. All existent realities, Asouzu maintains,
relate to each other in the manner of mutual service (278). When we say that anything that exist serves
a missing link of reality, how does a thing serve a missing link of reality?
When a unit is abstracted from the whole and
viewed as completely isolated, discrete and discontinuous, it is seen as an
independent non relational entity. At
this moment it could be said that they are missing in relation to one
another. They are missing in the sense
that, as discrete units, each can be viewed in isolation to each and in total
disregard to one another. When this
happens, a unit can be unaware of the other and in this moment, the one that it
is unaware of is missing (Azouzu, 2003:59).
This idea of complete isolation is, in Asouzu’s view,
counter-intuitive. In this
counter-intuitive mindset, they stay in relation to one another, and for this
reason, they serve a missing link (Asouzu, 2004:278).
Asouzu frankly maintains that to conceptualise discrete units in an
authentic systematic way involves conceptualizing them as completely
complementary to one another. This
means that one must understand or conceptualize units implicitly and
necessarily in complementary anticipation of the whole that gives them their
legitimacy (278-9). Such consciousness, that is complementarily oriented is a
transcendent consciousness that is capable of ‘sublating’ (aufgehoben) the
contingent immediacy of the moment and views units as existing now yet in a
proleptic future referentiality.
Authentic complementary reflection and actions are motivated by an
experience of transcendent complementary unity of consciousness.
The aim of this paper is to assess human rights in the light of the
method and principles of complementary reflection.
2.0 ON HUMAN RIGHTS
Everything
in existence is man-related. Nothing
has meaning except man gives meaning to it.
Man gives meaning to reality.
Man interprets being. This is
because he defines what there is. Take
away man and all things sink into absurdity.
In the introduction to his final report on the work of the UN,
Secretary-General U – Thant stated:
I
feel more strongly than ever that the worth of the individual human being is
the most-unique and precious of all our assets and must be the beginning and
end of all our efforts. Governments,
systems ideologies and institutions come and go, but humanity remains. The nature and value of this most precious
asset is increasingly appreciated as we see how empty organised life becomes
when we remove or suppress the infinite variety and vitality of the
individual (cf. Moses Moskowitz, 173),
It is an event of noble significance as the UN includes provisions on
human rights in its Charter. The
origins of human rights could be traced back to early philosophical and legal
theories of the natural law. Two major
philosophies encompass ideas on human rights. These are the humanistic
philosophy of the enlightenment of the eighteenth century and Marxism as
developed by Lenin. Some humanistic
philosophies of the Enlightenment include the philosophy of Locke, Hobbes and
Rousseau.
The concept of right traces its descent to the natural law theory. The development of the natural law theory
through ages is the unfolding of the origins of rights in history. For a complementary understanding of the
natural law theory, a consideration of analysis of rights poses an expediency.
2.1 Analysis
of Rights
If I attempt to investigate “Human Rights Protection in the United
Nations” without a clear idea of rights, a clear theory of rights in general,
and of human rights in particular, I will not be right about human rights. ‘Rectus’ is the direct Latin derivative of
right which means correct, straight, right.
But ‘jus’ is the technical Latin name for right. While ‘Recht’ is the German equivalent of
right, it is named ‘droit’ in the French language. A right, in its most general sense, is either the liberty
(protected by the law) of acting or abstaining from acting in a certain manner,
or the power (enforced by the law) of compelling a specific person to do or
abstain from doing a particular thing (Oputa, 1989:39).
If right is not a right until the state has begotten it by legislative
process or decree or confirmed it by the decision of a competent court, what
then is right when we speak of fundamental human rights or inalienable rights
of man? From where comes the
inviolability, inalienability, humanity and fundamentality of right? These questions lead to an investigation
into an ontology of right.
Every human being is a person and every human person who is capable of
reasoning knows that he is a person.
The consciousness of this personhood affords him or her the natural
capacity to repel any constraint upon his or her humanity, personhood and
freedom. This self same consciousness
engenders a further consciousness, that is, the consciousness that he or she is
a complete whole, and not a portion of any other human being. This affords a consciousness that he is an
autonomous subject. It is owing to
these features: inalienability of his humanity, personhood, freedom and moral
autonomy that inalienability and fundamentality are characteristic of rights. Fundamental human rights are in man by the
very nature of humanity. Human rights
have an ontological foundation in the humanity of man.
Following this train of thought, N.S.S Iwe affirms that human
personality is the direct source of human rights. Naturality, fundamentality, humanity, universality,
inalienability and inviolability, imprescriptibility, and correlativity,
according to Iwe, are the essential features of human rights (Iwe:2000). Human rights flow directly from the natural
endowments of the human person. This is
the basis for the naturality of human rights. What is meant by fundamentality
of human rights is the fact that human rights are the foundation upon which
other rights created by positive laws can appropriately be based. Human rights, as the natural foundation of
all human values, are, according to Iwe, prerogatives and privileges of every
member of the human race. In other
words, promotion of human rights is a promotion of human dignity and
wellbeing. This explains the humanity
of human rights. It also entails that
human beings are subjects of human rights.
The fundamental principles of human rights, such as respect for human
dignity, human equality, human liberty and human solidarity are applicable to
every human being every where. This is
the universality of human rights. By
the inalienability of human rights is meant that no one may legitimately take
away or deprive a human being his or her fundamental human rights. These rights are rooted in the very personal
nature of man. These rights are
essentially not subject to the passage of time. This is why human rights are said to be characterised by
imprescriptibility. Correlativity of
human rights explains how fundamental human rights are matched by fundamental
human duty. Human rights are
correlative to duty.
Lord Salmond explains right as an interest recognized and protected by
the law, respect for which is a duty, and disregard of which is a wrong.
(Osborn, 1964:283). Rights are demands
or just claims which individuals make on the society. They are claims, demands and entitlements of individuals which
are protected and recognised by the law.
In this context, a right is a legal claim or demand, a legal entitlement
which an individual or a group of individuals make on the society. Fundamentally speaking, rights are possessed
by human beings who are endowed with reason, freewill and freedom.
Human rights are cherished entitlements endowed upon every person in
virtue only by being human (Igwe, 6).
They are those rights which the international community recognizes as
belonging to all individuals by the very fact of their humanity (Umozurike,
1999:144). All human beings everywhere,
at all times, have these rights by the very fact of their being moral and
rational agents.
When closely examined we discover that there are certain elements in
the concept of right which connotes complementarity. It is the idea of relativity of right.
There is the owner or holder of right.
There is also the act to which the right relates. There is an object of right, and the person
or persons or legal personality bound by duty.
There is thus a basic relativity in right. The holder of right is knit together by the agent who may respect
this right. This agent, conversely, has
rights which are expected to be respected by the other. The holder of right is at the same time
duty-bound to respect another’s right.
There is an exception to this rule where an infant has a right to be
cared for and protected, but is not bound by duty. This exception may extend to the insane. Every right involves a relationship between
two or more persons. Right and duty are
correlatives. Right-duty covers several
relations. For example, if X owes Y
N1000000, then Y has a right that X should pay the money. If Y owns a plot of land, then Y has a right
to exclude X and others from his land.
X and the rest are duty-bound to refrain from trespassing. If X and the rest infringe on the right of Y
over the land, Y can seek legal remedy, for Ubi jus ibi remedium. In this and every situation right and duty
are correlatives. Before tracing the
history of human rights, it is interesting to end this aspect of analysis of
right with some statements of authority.
Legal rights are founded upon fundamental human rights. Fundamental human rights derive from the
human autonomous nature. An
investigation into the foundation of human rights would serve for an ontology
of rights.
2.2 Human
Rights and the Natural Law Theory
Most observes may regard the promulgation of the Universal Declaration
of Human Rights as the beginning of modern struggle to protect human rights,
yet the origins of human rights is traceable to early philosophical and legal
theories of natural law. Natural law
theories agree that individuals were entitled to certain immutable rights as
human beings. Natural law is the
assumption that law is based on the rational nature of man. The rational element, season, is the
foundation of law. Little or wonder why
Thomas Aquinas described law as an ordinance of reason, for the common good,
promulgated by him who has care of the community (Aquinas: 1- 11, q. 90, a.1).
The natural law theory submits that there are fundamental principles
which constitute the basis for proper human action and that the rightness of
human actions is assessed according to fundamental principles of human nature
discernible through the application of reason.
Njoku presents the presuppositions
of natural law theory. First,
natural law is based on value judgements which emanate from some absolute
source and which are in accordance with the rational feature of the human
being. Secondly, these value judgements
express objectively ascertainible principles which characterize the essential
nature of the human being. Next, it is
given in this theory that the principles of natural law are unchanging and can
be cognized by the proper employment of human reason. Moreover, these principle are said to be universal and superior
to all positive law. Again, the natural
law theory establishes that law is a basic requirement of human life in society
(2001:38).
2.2.1 Ancient
Time
The age of Homer and Hesiod was characterized by myths and gross
superstition. Then it was
superstitiously held that there was a world of spirits which controlled the
physical world. This mind-set led to
the idea that some higher forces controlled human existence and therefore, some
higher sort of rules, principles or laws, discoverable by reason.
The Stoics are at the root of the history of the natural law theory.
Stoicism conceives the world as an ordered whole where entities perdure
following the principles of order. God,
according to the Stoics, is the pervading rational substance which orders the
whole course of events. God is in
everything. God is reason as is in
everything. Reason controls
everything. Just as the world is a
material order permeated by the fiery substance called reason or God so also
man is a material being who is permeated by this very same fiery
substance. When the Stoics said that
man contains a spark of the divine within him, they meant that man contains
part of the substance of God, which is reason (Stumpf:113). Man, a fortiori, possesses the rational
substance. The Stoics believed that
human rationality, besides engendering the act of ratiocination, fosters man’s
participation in the rational order of nature.
They emphasized a willing submission to nature as living naturally
according to reason. The Stoic idea of
law of nature was bequeathed to the Romans.
Led by Circero, the Romans embraced the Stoic legal legacy and
transformed it to jus gentium. Cicero
defined natural law as right reason in agreement with nature (Lloyd, 108). For Cicero, the test of law is whether it
accords to the dictates of nature.
Nature, for Cicero, has endowed mankind with the law it must obey,
discernible by reason. Thus, the Romans
saw in the Greek idea of natural law a vantage point from where they sought
justification for the jus gentium, which was deemed to enshrine rational
principles common to all civilised nations (Malcolm Shaw, 15). Suarez stood in opposition to the Roman jus
gentium and sought to flaw it. This was
because of elements of positive law in jus gentium.
2.2.2 Medieval
Age and the Renaissance
Aquinas gave a succinct articulation of natural law. Law, in the Aquinian sense, is ordinance of
reason for the common good, promulgated by him who has care of the community
Law (lex) is derived from ‘ligare’ (to bind) since it binds one to act. That law is an ordinance of reason is
another way of saying that it is an order or command emanating from
reason. It is not a suggestion or an
advice (Dougherty, 115). It is not a
command emanating from mere instinct, but reason. It is reasonable, observable, enforceable and useful. It is reasonable, but it is meant for the
good of the community. Law is meant for
the ordering of the society. Social
control or societal order is the aim of law.
Going further in this analysis of the description of law as given by
Aquinas, one notices an element of jurisdiction. This is found in the assertion that the law should be promulgated
by one who has care of the community.
The right to impose or administer law explains the concept of legal
jurisdiction
Aquinas gives a quadriad division of law. These are:
Eternal
law ; Divine law ;
Natural
law ;and Human .
Eternal
law is God’s rational rule of all created reality. It is presented by Aquinas that the whole world is governed by
divine reason, and since the conception of things by divine reason overcomes
temporality, this kind of law is called eternal.
Aquinas was of the opinion that man is ordained to an end of perpetual
bliss, and that there must be a law that can direct man to this supernatural
end. This law is given by God to man
through revelation in the scripture. This
law is tagged ‘divine law’ by Aquinas.
Classically
rendered, natural law, according to Aquinas is the participation of the eternal
law in the rational creature. (Summa Theologica. p. 1- 11, q. 91, a. 2). This participation, he argues, is by natural
inclination in man and through the first principles of practical reason. In short, man discovers the natural law by
the natural light of reason in drawing conclusions about his nature. According to Aquinas, law, being a rule and
measure can be in a person in two ways: in one way, as in him that rules and
measures; in another way, as in that which is ruled and measured. And given that all things subject to divine
providence are ruled and measured by the eternal law it is certain that all
things participate in some way in the eternal law, since from its being
imprinted on them, they derive their inclinations to their proper acts and
ends. The rational creature is subject
to divine providence in a more excellent way than other creatures. The reason is because it partakes of a share
of providence. It has a share of the
eternal reason whereby it has a natural inclination to its proper act and
end. This participation of the eternal law
in the rational creature is called the natural law.
Human law, refers to the derivations or determinations from the general
precepts of the natural law. The basic
precepts of the natural law is that good must be done and evil avoided (Bonum
faciendum et malum vitandum). Thus
human law is the ordination of human reason through the mode of a determination deduced from the natural law.
Machiavellian secularism and subjectivity, based on naked expediency,
eclipsed Thomist legalism. But ‘bravo’
to the Spanish duo of Suarez and Vittoria, who saw to the renaissance of
Thomism. Suarez and Vittoria jointly
reacted against Luther’s theology. Nice
to hear Suarez where he said that the error which needed to be extirpated was
“the blasphemous suggestion of Luther
that, even for a just man, to follow the law of God is impossible” (Lloyd, 111).
2.2.3 Modern
Period
Vittoria was at peace with the Thomistic distinction between jus
gentium and positive law. Suarez,
nevertheless, jettisoned the jus gentium, since it differed in an absolute
sense from natural law, for, according to him, the jus gentium was a human
positive law.
Grotius Hugo took hold of the Suarezian conception of the jus gentium
and, charged by the Luther’s theology of law, sought its formulation into a
code of law to govern international relations.
Eventually, Grotius Hugo concluded that natural law would be even if God
did not exist (etiamsi daremus non esse Deum).
Hugo thus relieved natural law of religiousity (Hugo, De Jure Belli ac
Pacis, Prolegomena, para. 11).
Bellarmine had preempted Grotius, where he affirmed that, even if per
impossibility man were not God’s creation he would still be a rational creature
capable of interpreting the natural law (Lloyd, 112).
With Hobbes, Locke and Rousseau, natural law theory was discussed as a
natural rights doctrine. The social contract
theory was a daring attempt to construct a natural right doctrine.
The
state of nature, according to Hobbes, is the condition of men living without
government. In the Hobbesian state of
nature, homo hominis lupus, man is a wolf to man. In this state of nature there is natural equality of human
capacities, and perpetual conflicts remain the order of the day. Each man constitutes a threat to a fellow
man. Hobbes describes the state of
nature as uncivil. In the state of
nature.
there is no place for industry; because the fruit
thereof is uncertain: and consequently no culture of the earth, no navigation,
nor use of commodities that may be imported by sea; no commodities for building
; no instruments of moving, and removing such things as require much force; no
knowledge of the face of the earth; no account of time; no Arts; no letters; no
society; and which is worst of all, continual fear, and danger of violent
death; and the life of man, solitary, poor, nasty, brutish and short (cf.
McClleland, 194).
In
this state of being the law is that of self preservation, since none could
predict what he would do for the preservation of his life. The preservation of life becomes the right
of nature. The right of nature, in
Hobbes’ view, is a precept, or general rule found out by reason, by which a man
is forbidden to do, that, which is destructive of his life, or takes away the
means of preserving the same; and to omit, that, by which he thinks it may be
best preserved (cf. McClelland, 216).
To allay the fear, insecurity, solitude, poverty, nastiness, brutality
and brevity that surround the right of nature in the state of nature, men enter
into a social contract. Men must
surrender their individual right of self-preservation to a sovereign, whose
sovereignty is unlimited. By
surrendering their right of nature to a sovereign who is not party to the
social contract, men legitimize whatever the sovereign does. In Hobbes, the law
of nature, therefore, lies in the fact that everyone has to surrender his right
to everyone else and begin to respect the right of others. However, the Hobbesian sovereign is a
dictator.
Natural right, according to Locke, is an entitlement under natural law,
which is God’s law. Locke argues that
God did not create the world in vain.
(One should note here that Locke appeals to God to justify his
argument). Locke argues that God
intended Adam and Eve to live as contented vegetarians. But since they rebelled against God, Locke
continues, that they were punished, first, by expulsion from the garden, and
for man, labour for his bread. Locke
deduces from this story in the Biblical account of creation that man was
granted the right to life, the natural right to labour and a natural right to
the land he tilled and the fruits of his labour. The right to life, liberty and property as given in the twenty
second article of the Universal Declaration of Human rights were argued for by
John Locke, and so, discourse on human rights without a basis in the philosophy
of John Locke is incomplete.
In furtherance of his arguments, Locke observed that each man knows by
the natural light of reason that other men possess same rights as he does. And, again, that his rights must be
respected by other men. Each man, for
his rights to be respected, had to respect another’s rights. Each man, then, becomes duty-bound to
respect the rights of others. This
reciprocity makes the state of nature social.
Due to his imperfections, nonetheless, men would sometimes invade the
natural rights of others. The right of
judgement and punishment follow from here when men think that their natural
rights have been violated by others.
This is the right to seek redress for
infringement on one’s right(s).
Rights would be useless save there is a right to judge when rights have
been violated. Hence ubi jus ibi
remedium. Men entrust the government
their right to judgement on the condition that the government uses the right to
judge when there is violation of natural rights. By so doing, men form the common wealth, respublica. In the words of the man, Locke,
Men,
being as has been said, by nature, all free, equal and independent, no one can
be put out of this estate, and subjected to the political power of another,
without his own consent. The only way
whereby any one devests himself of his natural liberty, and puts on the bonds
of civil society is by agreeing with other men to join and unite into a
community, for their comfortable, safe, and peaceful living one amongst
another, in a secure enjoyment of their property, and a greater security any
that are not of it. This any number of
men may do, because it injures not the freedom of the rest; they are left as
they were in the liberty of the state of nature. When any number of men have so consented to make one community or
government, they are thereby presently incorporated, and make one body politic,
wherein the majority have a right to act and conclude the rest (Locke, Two
Treatise of Government, 1690).
The
power of government lies in the consent of the governed. The sovereign is part of the common wealth
since he gives up his rights to the commonwealth. Sovereignty is entrusted to the sovereign, but if the sovereign
betrays this trust, Locke argues, exercise of judgement reverts to the governed,
and the governed are, then, at liberty to constitute a new contract.
Locke’s theory of natural rights leaves a whole lot of political
principles for government. Such
principles, inter alia, are the consent principle, majority principle, right to
civil disobedience and civil and political rights. Hobbes’sovereign is a ‘Leviathan’ who is not part of the
commonwealth. Locke’s sovereign is part
of the commonwealth.
“Man is born free, but everywhere he is chains” is a significant
expression of Rousseau’s social contract theory. Rousseau sought to find a form of association which would protect
the person and property of every associate with the whole force of the country
and by means of which, coalescing with all, may obey only himself yet remain as
free as before. In order to realize
this association, Rousseau argues that each person must surrender all his
rights to the general will (Volente generale) which is the commonwealth,
respublica. Hence
each
of us puts in common his person and his whole power under the supreme direction
of the general will; and in return we receive every member as an indivisible
part of the whole (Jean- Jacques Rousseau, “Social contract”, in: Ideal Empires
and Republics, W. H.Wise & co. publishers New York, 1901, p. 13).
This
act of association produces a collective body, composed of many members, and
which receives from this same act its unity, its common self (moi), its life,
its will. According to Rousseau, this
collective body, which was initially named city, now takes the names “republic
or body politic”, when it is passive, “sovereign” when it is active, and
“power” when it is compared to similar bodies.
The associates are collectively named “people”, and are individually
called “citizens” as they participate in the sovereign power and are called
“subjects” as they are subject to the laws of the state (supra, 14). As a free agent the individual gives up his
liberty to the general will and remains subject to it, for “man is born free, but everywhere he is in
chains”. How and in what sense can the
autonomous wills of individuals be understood as constituents of the general
will? Rousseau appears not to have
addressed this question so as not to unmake the general will amorphous and
nebulous.
Kant assumed or sought to resolve the vagueness
of the ‘general will’ in the categorical imperative. For Kant, Rousseau had shown that man’s true being was his
ethical autonomy, freedom. Freedom is
the only one and original right which belongs to each man by reason of his
humanity (Kant, “metaphysics of morals” in: Ernst Cassierer, 1992:38f). In Kantian practical reason, freedom is not
a merely negative freedom consisting in the absence of constraint by empirical
causes; it is rather a positive freedom which consists in the capacity to make
acts of will in accordance with the moral law.
In this positive sense freedom is the autonomy of the will and when the
will is determined by external forces, it is called heteronomy. In other words, heteronomy occurs whenever
the will obeys laws, rules or injunctions from any other source. The will is autonomous in obeying the moral
law for the sake of the law alone, because it is obeying a law which it imposes
on itself (John Kemp, 1968: 59 – 60).
The categorical imperative is thus the general law of freedom. Kant maintains that it is from our autonomy
or freedom that the moral law is founded, and consequently all rights as well
as duties (Kant,:Great Books of The Western World, 1993: 383).
Kant classifies rights into natural right and
positive right, on the one hand, and innate right and acquired right, on the
other hand. Natural right rests upon
pure rational principles a priori.
Positive or statutory right is what proceeds from the will of the legislator. This division of rights is derived from the
system of rights, viewed as a scientific system of doctrines. The system of rights may also be regarded in
reference to the implied powers of dealing morally with others as bound by
obligations. Viewed in this sense,
Kant, again, divides right into innate right and acquired rights. Innate right is the right which belongs to
everyone by nature, independent of all juridical acts of experience. It is also called the “internal mine and
thine”. (meum vel tuum internum); since
external right must always be acquired (Kant, in: The Great Books,
1993:401). Acquired rights are rights
derived from juridical acts of experience, and thus acquired externally. Freedom is the only one innate right. It is independence of the compulsory will of
another; and in so far as it can co-exist with the freedom of all according to
a universal law. It is the one sole
original, inborn right belonging to everyman in virtue of his humanity. An innate equality belongs to everyman which
consists in his right to be independent of being bound by others to anything
more than to which he may also reciprocally bind them. This reciprocity calls into order of
discourse the right-duty correlativity which was rendered above under “analysis
of right”. But suffice it to say that a
succinct rendition of the Kantian perspective is necessary here. In no much words, just as we have the
division of right which is either internal or external, we also have duties
which correlate with each of these rights.
Kant affirms that a duty is what we ought to do: an obligation. He is of the notion that all duties are
either duties of right, that is, juridical duties (offica juris), or duties of
virtue, that is, ethical duties (officia virtutis ethica). Juridical duties are such as may be promulgated
by external legislation while ethical duties are those for which such
legislation is not possible (Kant, in: The Great Books, 1993:383). No external legislation can cause anyone to
adopt a particular intention, or to propose to himself a certain purpose. This depends upon an internal condition or
act of the mind itself.
Right, in Hegel’s philosophy, is primarily that
immediate existence (dasein) which freedom gives itself in an immediate
way. Freedom, in Hegel’s philosophy of
right, does not consist in
possibilities of acting, but a kind of action in which one is determined
entirely through oneself, and not all by any external factor (Hegel, Philosophy
of Right (hereinafter referred to as “PR”), paragraph 23). Yet, in the case of free action, Hegel
thinks that most people identify it with dong whatever we please or with
venting our particularity and idiosyncrasy.
This is, according to Hegel, shallow and immature. Hegel stresses that we are free only when we
overcome particularity and act universally.
Free action is action in which we deal with
nothing that is external to our own objective nature. That does not mean that freedom consists in withdrawing from what
is other than ourselves. Hegel emphasizes
that absence of dependence on an other is won not outside the other but in it. It attains actuality not by fleeing the
other but by overcoming it. Thus Hegel
describes freedom as actively relating to something other than oneself in a
manner that the other becomes integrated into one’s project, completing and
fulfilling them so that it counts as belonging to one’s own action rather than
standing over against it. What this
means is that freedom is possible only to the extent that we act rationally,
and in circumstances where the objects of our actions are in harmony with our
reason. The most spiritual of such
objects is the state in which we live.
Freedom is actual only in a rational society whose institutions can
befelt and known as rational by individual who are ‘with themselves’ in those
institutions (Philosophy of Right, editor’s introduction). Freedom is freedom of the social order, the
state, and the right emanating from this absolute freedom is abstract right.
In our long journey through Kant’s and Hegel’s conception of right, a
basic idealism is evident. Such
idealism and transcendentalism almost project conceptions and reality of
freedom and right to either arbitrariness or absolutism. It is worthy to note that Hegel’s statism
had a whole lot of influence on the Nazi fascism of Hitler who sought to
absolutize himself in the world. This
sort of mindset, the will to power, has led to abuse of the human person. This absolutist consciousness drove
Alexander the Great to a megalomania, Alexander the Great, whom Hegel regarded
as a manifestation of the Geist in world history. This self same consciousness drove Napoleon Bonaparte in
repeating, though minutely, the megalomania of Alexander the Great. With this self-same authoritarian
consciousness, Benito Mussolini declared fascism the state ideology, and Hitler
sought to a dominion over Europe. Even
before the emergence the these modern dictators, England and France had
despotic regimes, the reactions against of which were the natural right theory.
Under the “divine right” of Kings, English Monarchs lorded over
England. This was the age of the
Tudors. This was the historical
situation into which Locke was born and in which he lived. Against this historical setting, Locke wrote
the two Treatises on Government, and thus set the pace for a civil
unrest. Locke reacted against the
despotism of the Tudors and ideologically, yet actively, set the 1688 Glorious
Revolution in motion.
The natural right theory of John Locke influenced the American fathers
in no small way. The American nation
was founded on the principles of life, liberty and happiness. The federalist fathers, reacted against the
dictatorship of King George III. And
so, led by Thomas Jefferson, James Madison Thomaspaine, etc, they declared
independence from England on July 4, 1776.
The political philosophy of John Locke and the doctrine of separation of
powers of Monesquieu were the ideologies upon which the American state and
constitution were founded.
The Declaration of the Right of man and Citizen was influenced by the
views of the Greek and Roman natural law philosophers and social contract
theorists, especially the natural rights theories of John Locke and
Jean-Jacques Rousseau. From these
thinkers were derived the political ideals of liberty, Equality and Fraternity
(Liberte, Egalite, Fraternite), which served as the motto of the French
Revolution of 1789. Rousseau’s
political philosophy which influenced the French Revolution of 1789, and the
revolution, itself, were reactions against the ancien regime of the Bourbon dynasty
which culminated in the regime of the Sun King Louis XIV.
Violations of the rights of man and reactions to such violations have
led to developments of the human doctrine in the modern time: Locke’s natural
rights theory against the divine rights of kings; the American Declaration of
Independence against the authoritarianism of King George III; Rousseau’s social
contract theory and the French Revolution of 1789 against the tyranny in the
ancien regime.
Lauterpacht remarks that the 1789 Declaration of the Rights of man and
citizen, the constitution of Virginia of 1886 and the 1776 American Declaration
of Independence were the first constitutional instruments of modern times to
proclaim the natural rights of man and also to assert that such must form a
part of the law of the state (1964:75).
De Gaulle and Pompidou enshrined these inviolable rights in the French
constitution and thus set the French Republic upon its modern cause.
The origins of human rights in legal history, as given above, is traced
back to early philosophical and legal theories of the natural law. These theories were of the idea that
individuals are entitled to certain
immutable rights as human beings. However,
in the 19th century, states were the only proper subjects of
international law. Though Hegel never
bought the idea of international relations nor the existence of the
international system and international community (He emphasized that the state
was total, sovereign, autonomous, needing no external influence or power), his
statism fostered the idea that the individual had no international legal status
in international law. Nonetheless,
efforts were made to abolish slavery and slave trade. There were diplomatic efforts to protect the rights of aliens
abroad. Beyond this time there were
humanitarian interventions for the protection of minorities. The founding of the red cross society came
at the Great War (World War I) era. The
League of Nations was founded at the
end of World War I in 1919. The League
of Nations was an effect of the recognition of the rights of peoples to
self-determination.
2.2.3 Contemporary
Concerns:
The Scientific barbarity of Nazi regime of Hitler instigated the
emergence of the United Nations. Hence,
nations assembled to form an organisation for the purpose of international
order, consequent upon the scourge of the Second World War, which shocked the
conscience of mankind. This
organisation came to force on October 24, 1945, in the city of San Francisco,
under the name of United Nations Organisation. The UN set to maintain
international peace and security. And
to achieve this set goal, the UN recognized that “respect for human rights is
the foundation of peace in the world (Universal Declaration of Human Rights,
1948, preamble).
Necessitated by human rights violations of the Second World War, the UN
sought for the codification of international minimum standards for the
protection of human rights. Among
others, the UN human rights instruments are the UN Charter and the
International Bill of Rights. The
International Bill of Rights comprises the Universal Declaration of Human
Rights (hereinafter designated UDHR) and the International Covenants. UN, therefore, serves as a complementary
forum where diversities are expected to resolve in unity. One can say that the UN has an ontological
status since it seeks to resolve the metaphysical problem of one and many. Significantly, ‘United” derives from the
Latin “unum” which means “one”. The UN
is a symbol of oneness and unity which seeks to resolve world diversities. Peaceful co-existence is in principle, a
call to unity in diversity. It is a
call to co-existentiality. It is a
complementary challenged and understanding.
Complementary reflection entails that no unit or unit-system is
absolute. This insight is the main
thesis of authenticity criterion as the regulative mechanism of all
complementary units (Asouzu:310ff).
There is finitude in every unit or unit-system. When each unit and unit-system acknowledges
this finitude it would seek complementation.
In quantum mechanics, Niels Bohr sought complementation for the
wave-corpuscular nature of light. Thus,
to reproduce the wholeness of a phenomenon at a certain intermediate period of
its cognition, use must be made of mutually exclusive complementary and
mutually limiting classes of concepts, which can be used separately, depending
on specific conditions, but only taken to cover all definable information
(Frolov (ed.), 1984:77). Bohr
complemented the particle nature of light with the wave nature of light, such
that light could be described in terms of wavicle. That was just in the atomic level of phenomena. Over and above the principle of
complementarity in quantum physics, complementarity has the status of an
ontology in philosophy. The method and
principles of complementary reflection of Asouzu is this ontology. Through the
application of the basic assumptions of complementary ontology one would be in
a position to address some ambivalent interests in opposing systems and
ideologies as these relate to the theory and practice of human rights.
A history of rights in natural law theory would be incomplete without
legal positivism. Legal positivism is involved in addressing the question of
whether moral or legal imperatives (ought-statements) could be derived from
what is as facts (is-statements). Both
Hume and Kant deride any purported legitimacy in deriving an ought-statement
from an is-statement. But this is the
position of legal positivists, namely, that legal imperatives are not derived
from social facts. For them, there is
no necessary connection between law and morals. Law, for them, is identified by social facts by the process of
creations rather than by its content.
There is, thus, much connection between empiricism and law.
Contemporary concerns with natural law would not be complete without
the ideas of Lon Fuller, H. L.A. Hart, John Finnis, Dworkin and Holfelf. Lon Fuller rejected Christian doctrines of
natural law and the natural rights theory of the seventeenth and eighteenth
centuries. He did not subscribe to a
system of absolute values. Yet he found
in the various natural law theories the search for principles of social
order. Hence “I discern, and share, one
central aim common to all the schools of natural law, that of discovering these
principles of social order which, will enable men to attain a satisfactory life
in common” (cf Lloyd: 129). In all
these theories of natural law it was assumed that the process of moral
discovery is a social one, and that there is something akin to a collaborative
articulation of shared purposes by which men come to understand better their
own ends and to discern more clearly the means for achieving them. Fuller emphasizes, in Anatomy of Law
(1968), the role of reasoning in legal ordering.
From
a sociological ambient H. L.A Hart, attempted to restate a natural law
position. Hart presents certain facts
of the human condition which must lead to the existence of a ‘minimum content’
of natural law. Human vulnerability,
approximate equality, limited altruism, limited resources, limited understanding,
and strength of will are these facts of the human condition, according to
Hart. For him, a “natural necessity”
follows from these features of the human condition, for certain minimum forms
of protection of persons, property and promises (cf. Lloyd:134).
John Finnis attempted to restate natural law by seeking to eliminate
pure naturalism in the natural law tradition.
His argument is that natural law does not necessitate a belief in
morality as comprising observance of rationally demonstrable principles of
behaviour. He decries the claim that
natural law requires laws which infringe such principles to be impugned as
invalid.
In defending Aristotle and Aquinas on the view that natural law
essentially refers to what conforms to reason, Finnis states that natural law
is the set of principles of practical reasonableness in ordering human life and
human community (Finnis, 1980:35). He
mentions certain basic human values which every reasonable person must assent to
as objects of human striking. Life is
the first of basic value. This first
value corresponds with the drive for self-preservation. Next is knowledge, which is a preference for
truth over falsehood. This corresponds
with the drive for curiosity, for man, by nature, desires to know (Aristotle). Finnis is of the opinion that knowledge is
sought for its own sake. However,
knowledge must be seen as serving an end.
The third value, according to Finnis is play, a performance for the sake
of it. Next is the aesthetic
experience, which is the appreciation of beauty. The fifth value is sociability of friendship. Here, Finnis argues that human beings act
for the sake of one’s friends’ purpose or well-being. The ability to bring one’s own intelligence to bear effectively
on the problems of choosing one’s actions and life-style and shaping one’s
character explains what Finnis calls practical reasonableness, which is the
sixth of these basic values. The
seventh one is religion. This is the
ability to reflect on the origins of the cosmic order and of human freedom and
reason (Finnis, 1998:86 – 98). Finnis
warns that law must not be studied in isolation from natural law.
In his Taking Rights Seriously, Ronald Dworkin affirms that
anyone who professes to take rights seriously must accept the ideas of human
dignity and political equality. Thus
anyone who claims that citizens have rights must accept ideas very close to
these (Dworkin, 1977:199). Dworkin’s
description of rights is found in his will or choice theory and in his interest
or benefit theory of rights.
The will theory of rights is upheld by those who view the purpose of
the law as being to grant the widest possible means of self-expression to the
individual, the maximum degree of individual self-assertion (Lloyd:441). The will theory identifies the right-bearer
by virtue of the power that he has over the duty in question. He can waive the right, or extinguish it,
enforce it or leave it unenforced. What
he does is his choice, emanating from his will.
According
to the Benefit Theory of Right, which bears
similarity to the thoughts of Raz, Bentham, Campbell, Thering,
MacCormick and Lyons, the purpose of rights is not to protect individual
assertion but certain interests.
Accordingly, rights are benefits secured for persons by rules regulating
relationships. Whereas will theory of
rights covers liberties the interest theory covers all categories of rights:
socio-economic and civil and political rights.
Hohfeld argues that every right, strictu, sensu implies the existence
of a correlative duty, but that not every duty implies a correlative right
(Hohfeld:1923). He felt an ambiguity
in the concept of rights and so sought for its analysis among other concepts
such as duties, privilege, power, immunity, liabilities, no-rights,
disabilities. These eight concepts
enter jural relations. Rights and
duties, privileges and no-rights, powers and liabilities, immunities and
disabilities are correlatives. A duty
or a legal obligation is that which one ought or ought not to do. Privilege is the opposite of a duty, and the
correlative of a no-right. Legal power
is the opposite of legal disability and the correlative of legal
liability. Immunity is the correlative
of disability (no-power) and the opposite, or negation, of liability. According to Hohfeld, a power is contrasted
to immunity just as a right does to a privilege. A right is one’s affirmative claim against another. A privilege is one’s freedom from the right
or claim of another. A power is one’s
affirmative control over a given legal relation as against another. Immunity is one’s freedom from the legal
power or control of another as regards some legal relation (cf. Lloyd,
546). These eight concepts, according
to Hohfeld, are the lowest common Denominators of the Law.
2.3 Monuments
of Human Rights
Besides our survey of evolution of human rights in the natural law
history, there are classical documents which contain provisions of human rights
or elements of human rights. These
range from the English Magna Carta to the Russian Proclamation of the Rights of
the Proletariate. For a complete list
we have them as follows: The English
Magna Carta, The English Bill of Rights, The American Declaration of
Independence and the American Bill of Rights, The French Declaration of The
Rights of Man and Citizen, the German Weimer Constitution, and The Russian
Proclamation of the Rights of The Proletariate.
2.3.1 The
English Magna Carta
King
John Lackland failed in his war against Philip Augustus of France and lost the
Battle of Bouvines in 1213. Owing to
these political humiliations, King John submitted to the terms of the Magna
Carta on 15 June, 1215 at a meeting of the feudal chiefs at Runnymede on the
Thames. By this act of his, the king
lost his tyrannical maneuvers over feudal customs and practice. He also lost his financial extortions that
had been devastating to his feudal subjects.
Economic exactions and financial extortions by the King were abolished;
royal dues were drastically reduced, all by the force of the Great Charter.
The Magna Carta is a document of sixty-three articles. The Carta provided provisions against abuse
of power by the government. Succinctly
put, the Carta enshrined two basic constitutional principles: that there are
some fundamental laws in every political organization which the government must
not violate; that if the government refuses to obey these laws, that nation has
the right to force it to do so, even to the point of overthrowing the
government and replacing it with another (Iwe, 1986:90).
2.3.2 The
English Bill of Rights
The Magna Carta gave birth to the 1628 Petition of Rights, which was
the direct constitutional antecedent to The English Bill of Rights. The Petition of Rights came into force on 7
June, 1628. The English men and women
restated the English constitution as against tyranny in the Petition of
Rights. They reacted against taxation
without parliamentary grant, and against imprisonment without due process of
law.
During the reign of James 1, there were unpopular financial and
military measures as a consequence of abortive and devastating military expeditions abroad. Due to this oppressive situation, the Houses
of the English Parliament petitioned the Crown for redress. This petition was aimed to remedy the
quartering of soldiers on civilians, the levying of unparliamentary taxation,
the subjugation of civilians under martial laws and wanton imprisonment (Igwe,
2002:19). These conditions made King
Charles to accept the petition.
Elements of human rights are found in many of its articles, such as articles
III and IV, stated respectively below:
And
whereas also by the statues called ‘The Great Charter of the liberties of
English’, it is declared and enacted that no freeman may be taken or imprisoned
or be disseised of his freeholds or liberties, or his free customs, or be
outlawed or exiled, or any manner destroyed but by lawful judgment of his
peers, or by the law of the land.
(Article III of Petition of Rights, 7 June, 1628).
Article
IV states that:
No
man, of what state or condition that he be, should be put out of his lands or
tenements, nor taken, nor imprisoned, nor disinherited, nor put to death,
without being brought to answer by due process of law.
The
Petition of Rights, as earlier mentioned, was a direct constitutional
antecedent to The Bill of Rights.
The Bill of Rights was promulgated on 13 February, 1689 and confirmed
at the Second session of the Convocation Parliament on 25 October, 1689. It is worthy to note that this way a year
after the Glorious Revolution.
The Bill of Rights sought to redress grievances aroused in the reign of
the Stuarts. It sought to affirm that
the laws and liberties of the English as standing against despotism. It decried royal despotism since “the King
has no right to violate the fundamental laws of the kingdom”. In point of fact, the Bill of Rights aimed
to settle the Crown of England on Prince William of Orange and his consert,
Princess Mary, and to protect the interest of the Church of England (Igwe,
2002:20). It must be estimated that
these English documents, Magna Carta and The Bill of Rights are a legal legacy
of England for human rights concerns in the international community. It is also worthy to note that England is an
authoritative member of the European Commission of Human Rights.
2.3.4 The American Declaration of Independence
and the American Bill of Rights.
The
autocratic colonialism of England, represented by the despotism of King George
III provoked the conscience of the Americans to declare their
independence. Thus in the city of
Philadelphia, July 4, 1776, the most loved relic of the Americans, the Liberty
Bell was rung and the American Independence was declared. In the preamble to the Declaration, the
founding fathers of America declared:
We
hold these truths to be self-evident, that men are created equal, that they are
endowed by their creator with certain inalienable rights, that among these are
life, liberty and the pursuit of happiness.
That to secure these rights, governments are instituted among men,
deriving their just powers from the consent of the governed. That whenever any form of government becomes
destructive of these ends, it is the right of the people to alter or to abolish
it and to institute new governments, lay its foundation on such principles and
organising its powers in such form, as to them shall seem most likely to effect
their safety and happiness.
The
American Declaration of Independence made manifest the American spirit of
liberty. The same sense of liberty in
the Declaration is found in the American Consitution. In the American Declaration of Independence of 1776, is also
found the idea of the natural law.
Moreover, John Locke and Rousseau are the ideological fathers of the
American nation.
2.3.5 The
French Declaration of the Rights of Man and the Citizen
Voltaire, Montesquieu and Rousseau were the ideological antecedents to
the French Revolution and the Declaration of the Rights of Man and the
Citizen. The American Declaration of
Independence was another catalyst behind the French quest for freedom.
Besides, the historical factor that led to the French quest for freedom
was the despotism of the ancien regime of the Bourbon dynasty, especially: the
tyranny of the Sun King Louis XIV. The
preamble proclaims that:
The
representatives of the French people, organised in National Assembly,
considering that ignorance, forgetfulness or contempt of the rights of man are
the sole causes of the public miseries and the corruption of governments, have
resolved to set forth in a solemn declaration the natural, inalienable, and
sacred rights of man, in order that this declaration, being ever present to all
the members of the social body, may unceasingly remind them of their duties; in
order that the acts of the legislative power and those of executive power may
be each moment compared with the aim of every political institution and thereby
may be more respected; and in order that the demands of the citizens, grounded
henceforth upon simple and incontestable principles, may always take the
direction of maintaining the constitution and the welfare of all.
In
consequence, the National Assembly recognizes and declares, in the presence and
under the auspices of the Supreme Being, the following rights of man and the
citizen”.
There
are seventeen articles that follow this
preamble. When summarized the
Declaration proclaims the following:
(i) Freedom and
equality of all men
(ii) The aim of every
political association is the preservation of the natural and imprescriptible
rights of man. The rights mentioned in
article II are liberty, property, security, and resistance to oppression
(iii) The nation is the
basis of sovereignty
(iv) Liberty entails
being allowed to do what does not injure other
people.
(v) Law is the
expression of the will of the society
(vi) Arbitrary arrest,
detention or molestation are prohibited
(vii) No retrospective legislation
(viii) Every man is
presumed innocent until proven guilty
(ix) Freedom of
thought, opinion and religion
(x) Freedom of speech
and expression
(xi) Prohibition of
abuse of official power
(xii) Equality of taxation
(xiii) Right of citizens
to assess the necessity for taxation
(xiv) Accountability of
public agents
(xv) Society must have a
constitution based in separation of powers and in which rights are guaranteed
(xvi) Compulsory
acquisition of property without compensation not permitted
There
are basically two broad categories of principles of the Declaration. The first is about the nature and rights of
man in society; the second, about the nature and position that governments
should occupy in society (Quashigah:1999).
2.3.6 The
German Weimer Constitution
Although the Weimer Constitution of 11 August, 1919 was shrouded in the
rationalization of the state and its power (Igwe, 2002:31), it nevertheless
contained some provisions of human rights.
There are provisions for the fundamental rights to equality, liberty,
personal privacy, movement, and the freedom of speech and expression in
articles 109, 114 and 118. Articles
that protected the basic rights of man in the family, in education, in the
press, in the field of labour and labour relations are 119 – 135. The Weimer republic was a statist regime.
2.3.7 The
Russian Proclamation of the Rights of the Proletariate.
Russia makes the proletariate the inviolable subject of fundamental
rights. The spirit behind the
Declaration of the Rights of the People of Russia on 15 November, 1917 and the
Russian Constitution of 1936 did not favour the individual directly, but the
proletariate. The protection of human
rights, for Russia, consists in the totalitarian state-machinery. Why? The state comes first before the
individual in any polity where the doctrine of statism is in vogue. This teaching is drawn from the grand
doctrine of socialism. This idea leads
us to discuss ideological approaches to human rights in international law.
2.4 Ideological
Approaches to Human Rights
2.4.1 Soviet
Approach
The erstwhile Soviet Union, Russia, emphasised the role of the state
over and above the place of the individual in their political economy. The source of human rights principles was
seen as the state. Individuals were
not subjects of international law and human rights were not directly regulated
by international law. In that system
conventions on human rights do not grant rights directly to individuals
(Tunkin, 1974:81). The Soviet Union was
willing to enter into many international agreements on human rights, on the
criterion that only a state obligation was incurred, with no direct link to the
individual. Such an obligation was one
that the country might interpret in the context of its own socio-economic
system. The state was total and held supremacy. This statist ideology, influenced by the
absolutism of Hegelian idealism minimized the importance of civil liberties of
individuals.
Nonetheless, the Soviet Principle of Peaceful Co-existence led to the
fundamental rights of states in international law. Such laws were: independence, equality of states, and peaceful
co-existence. The principle of Peaceful
Co-existence was projected by Lenin as a significant expression of his
Marxism. This principle calls for
co-existence of different social systems in the international relations. It implies non-interference in the internal
affairs of a state; the development of economic and cultural relations between
nations, and respect for the sovereignty of all states.
2.4.2 Western
Approach to Human Rights
The Western World emphasizes civil liberties of individuals. Such liberties, among others, are due
process, freedom of expression, assembly and religion, and political
participation in the process of government.
For the West, the consent of the governed is the basis of government,
thanks to Locke’s liberalist philosophy.
Civil liberties limit the power of the government over the
government. This approach checks or
tends to check abuse of power on the part of the government.
2.4.3 Afro-Asian
Approach to Human Rights
Most of those countries called ‘third world’ countries are mostly found
in the Afro-Asian regions of the globe.
Most of these countries tend to combine elements of both the socialist
and liberalist approaches to human rights.
These countries are preoccupied with concern with the equality and
sovereignty of states, together with a recognition of the importance of social
and economic rights (Shaw, 1997:200).
Article 3 (2) of the Charter of the Organisation of African Unity
emphasizes non-interference in the internal affairs of States: “The member
states, in pursuit of the purposes stated in Article 2, solemnly affirm and
declare their adherence to the internal affairs of states. This mind-set spells multiple consequences
in so far as human rights are concerned.
Among these, is the attitude of indifference to gross violations of
human rights. The following gross
violations of human rights have met with indifference on the African mechanism
for protecting human rights:
i. The massacres of
thousands of Hutu in Burundi in 1972 and 1973;
ii. The despotic and oppressive
regimes of Idi Amin and Milton Obote;
iii.
The massacre of innocent individuals in Chitungwiza in Zimbabwe in 1985
due mainly to the fact that they did not vote for the government party, the ZANU-PF;
iv.
Gross violation of human rights by the ‘ex-liberian war Lord, Charles
Taylor.
The
Nigerian government had to provide an asylum for this war criminal, and
prevented his extradition. In Nigeria
the case of violations of human rights and attendant indifference is not
different.
(i)
The exploitation and victimization of the Ogonis of the Niger Delta of
Southern Nigeria. Ken Saro-Wiwa, who
rose up to fight for the rights of his people was barbarously executed by the
Abacha government in 1995. The
Commonwealth had to react to such gross violations of human rights by
suspending Nigeria from Commonwealth membership.
(ii)
The ethnic cleasing by the Obasanjo government over the people of Odi,
in the Niger Delta region of Niger (Igwe, 2002:159);
(iii)
The mass execution of TIVS in Benue State by the Obasanjo government
(Igwe, 2002:159);
(iv)
The miscarriage of justice over the assassination of a Nigerian
Attorney General and Minister of justice, Late Chief Bola Ige.
We
could have a litany of such demonic cases.
This is reflective of a political system which does not respect the holy
liberties of man.
Human rights in history dates back to philosophy, the natural law
philosophy. But the monumental
documents of human rights discussed above, that is, the magna Carta, American
Declaration of Independence, The English Bill of Rights, etc, have made
manifest the groanings of mankind for justice.
In point of fact, the ontological status of human rights lies in the
nature of man.
2.5 African
Traditional Conception of Human Rights
There are no documents instruments of human
rights in traditional Africa, but the African is aware that his society is
sustained by laws transmitted by the elders and, say, the ancestors. With this in mind, the African is
self-conscious of the rewards or punishments accruing from his disposition
towards the law. This law is the
community norms which regulate the lives of members of such community. For instance, in all African traditional
society, respect for elders is a supreme virtue.
In the Annang society, each person is prohibited
from being malicious against some groups of people, namely: one’s
grandchildren, one’s grandparents and one’s inlaws. One is also bound to be hosptitable to the stranger. Although there are no clear formulations and
recognition of rights in traditional African societies, we are left to link the
African traditional conception of human rights with contemporary formulation of
human rights. The Africans have a deep
sense of human rights. These are rights
such as rights of inheritance and succession, right to work, right to found a
domestic society (right to marriage), right to respect and reputation, freedom
of thought, speech and beliefs, freedom of association, right to education,
right to property, right to life, et cetera.
Let us look at each of these rights in the context of the Annang
Society. First, the Annang people and
society.
The Annang Society is found within the
North-West region of Akwa Ibom State of Nigeria. The Annangland is bounded in the north and west by the Igbos and
the Ibibios make up their southern and eastern neighbours. The Khana people of River State are also
their south-eastern neighbours. Abak,
Ikot Ekpene, Ukanafun, Etim Ekpo, Essien Udim, Oruk Anam, Obot Akara, and Ika
local government areas make up the Annang society.
In the Annang Society is immersed an economic
system based principally on agricultural subsistence and exchange economy. The farm activities are a prestigious
pursuit for both men and women. After
the farm plots have been cleared by men for women, planting and care of crops
devolve exclusively upon the shoulders of women. The only exception here is yam-care, which is a privileged
responsibility of men. While the Abak
zone is notable for its oil palm products, raffia goods are a profitable source
of income for a good number of people in the Ikot Ekpene zone, the Raffia
city. Much of these goods are mostly
exhibited at the Obo market, the most central market for the whole of Annang.
Their highest political unit is the Afe
Annang. It is a political unit where
various clans representatives conglomerate as a forum to parley out issues
concerning the welfare of the Annang nation.
The Afe Annang (Annang forum) is presided by the “Itai” Annang
(Annang Pillar). The Afe Annang
is headquartered at Afaha Obong in Abak local government area of Akwa Ibom
State.
The Annang person (owo) strongly believes that
there is a supreme being, designated “Abasi Ibom”. “Ibom” calls his
unlimitedness into the focus of distinction.
“Ibom” means the whole limitless universe. Here accordingly, he is the lord of the whole boundless universe
and everything within it. Due to his
boundlessness, there is no temple nor shrine for him, since that cannot
accommodate him (Enang, 1979:5).
However, Abasi Ibom is a withdrawn God, the so-called
‘deus-otiosus’. This is so believed
because the Annangs believe they have close encounter with the spirits and
ancestors than with the supreme being.
The Annangs believe in a multitude of spirits who are believed to take
charge of specific aspects of life.
These deities are, thus, named after the areas of which they are
believed to be in charge. The souls of
the patrilineage ancestors have a strong place in the beliefs of the
Annangs. They fall according to their
social belongingness in clan, village, street and family. Sacrifices are offered frequently to them
either to appease them or to request for their favours. Their classification and influence are
indicative of their fundamental role in the society. Apart from being the historical origins of their different social
units, they have the social and political functions of promoting the welfare of
the people. The ancestors (Mme
Ette-Ette) share both in the good and bad in the life of the social units
(Ennang, 1979:26). Invisibly operating,
too, is a force called “odudu”, which the Annangs believe to pervade
nature. It is not identifiable, has no
permanent abode and can, therefore, be conveyed in everything and sent to any
place to do either good or harm. It is
impersonal, non-physical, and is diffused as the melannesian force, called
“mana” (Codrington, 1891:118ff).
Workers of evil magic are believed to possess the ability to use “odudu”
in bringing about the destruction or death of man, while good magic workers are
believed to invoke “odudu” for the benefit of those who approach them. As soon as “odudu” finds itself invoked into
application, it assumes the dimension of a personal force.
Within this Annang weltanschaaung, the Annang people and society believe in the spirituality
or sacredness of life and consider it as a primary value. However, some activities which were in vogue
in uncivilized Annang society could contradict that life is primary in Annang
society. Such activities were the
killing of twins, which Mary Slessor fought to stop. Like in most African traditional societies lives were sacrificed
at the burial of village or clans dignatories.
There was also present the practice of cannibalism before the advent of
Christianity. Most of the victims were
captives at inter-tribal vendettas.
Such vendettas were mostly between those living at the boundaries. Vendettas between the Ngwa people of Abia
State of Nigeria and the boundary villages of the Annang society, such as Ikot
Umoessien, Usaka Annang, Ika etc. With
these in mind, would one be justified to say that life was held sacred in
African traditional society and the Annang society in particular? Let us go on with their conception of human
rights.
The Right to Life
Apart from the cannibalistic, fetish and
barbarous Annang of pre-Christian Africa, the authentic Annang society believes
in the primacy of life. This is
attested to in the adage:”Uwem edi imo” (life is wealth); “itong ama odu uwem
okongo nkwa” (when the neck lives it shall wear beads), and so on. The Annangs go extra mile to preserve the
sanctity of life. They believe that we
live our lives in trust. Thus a suicide
is not given any befitting burial in Annang land since he or she is believed to
infringe the sacredness of life. Such
is thrown into the forest. Even when
they lose any member (except a suicide) the Annangs exert much time and energy
to give befitting burial, since they believe in reincarnation and the
spirit-world. Their belief in
reincarnation and also in the land of the spirit, the spirit-world, manifest a
tri-partite structure of human personality in Annang world view. The human person is composed of body, soul
and spirit. At the death of the body,
the soul enters into the process of reincarnation while spirit goes to the land
of the spirits, designated “obio-ekpo”.
The spirit lives in the spirit-world depending on whether the person was
virtuous. If he or she was not
virtuous, his or her spirit is believed to roam the world. Thus, that is why they are believed to
appear as ghosts. This tri-partite
conception of human nature in Annang society vitiates psychosomaticism ( a
belief that the human person is composed of body and soul) and establishes a
psychosomapneumaticism ( the idea that soul, body and spirit make up the human
person.. The Annang child is taught
that it is wrong to kill.
Right of Inheritance
and Succession
The right of inheritance of property at the
death of a man devolves on his sons.
Among others, the eldest son benefits more than other sons. He inherits, by traditional belief, the
father’s buildings or houses, and he is heir apparent to the throne if his
father were a village head. In terms of
his portions of land, these are usually divided among the male children,
beginning from the eldest to the youngest.
Women or female children do not enjoy this right in the Annang society.
Right to Work
The Annang society believes that success depends
upon hardwork. Everyone within this
society has right to work and to the fruits of his or her work. This right is correlative of the duty to
work. There is a duty to communal work,
such as the duty of keeping the village square and path ways clean.
Right to found a
domestic Society
Without being told the Annang man or woman
considers the right to found a domestic community a natural right. Thus he
or she presumes his freedom to marry and establish a home. There is no place for celibacy in the Annang
society. The successful Annangman or
woman is measured in his or her ability to found a stable home.
Freedom of Association
In traditional African societies there is a
right to associate freely with one’s own kin within an extended family, a right
to associate with people outside the extended family, a right also to
inter-tribal association as in marriages.
This right is limited in certain communities in Igboland. There is the practice of a caste system, the
“Osu”caste system. The Osu are believed
to attend to certain idols and thus were seen and treated as holy sect, and due
to their closeness and consequent “sacredness”, they are not related with
normally (Igwe, 2002:41). These group
of people are treated as inferior to other human beings, and as such there is
no deliberate intermarriage with them.
In traditional Annang society, only male initiates have the right to
belong to the “Ekpo” masquerade cult.
Those who have not been initiated, some males and all women are not
altogether free to move about in the society during the “Ekpo” masquerade
festival. At the climax of this
festival women are not free at all to be seen outside their homes. This is usually the last week of the tenth
month of the year, October. This
restricts their freedom of movement.
Right to Respect,
Reputation and Freedom of Speech
In view of the right to respect, the Annangs
give a special place to the elders and elderly. The elders, because of their experience in life, are believed to
be wise. Through their mouths oral
history, folklore and myths are transmitted to others. In the gathering of the people, the elder
makes recourse to the wisdom of the ancients.
In his awakening speech he begins with “our fathers used to say,” and
when rendering a folkfore, his point of departure is “once upon a time”. The wise one while rendering oral history,
folklore and myths makes the “once upon a time”, “in those days” or “our
fathers used to say” become “now”.
Recourse to wise sayings serve didactic purposes. Such ideal elders are cultically venerated
after their death because they are believed to belong to the spiritual
community of ancestors. Besides these
elders, every elderly person has a right to be respected by the younger
one. There is duty to respect one’s
parents and elders.
The Annang man or woman believes he or she has a
right to a good name. This is attested
to by the fact that, if he or she is blackmailed, he or she seeks redress by
reporting such a case to the council of elders, be it at the family level or
village level.
Freedom of speech and expression is conditioned
by the principle of respect. One is
bound to respect one’s parents and elders in the Annang society, despite your
interior conviction that you are free to speak and express your views.
There are, in summary, derogations from human
rights. Much emphasis is placed on
collective rights than on individual rights, and duty seem to overwhelm rights
in most African societies.
3.0 IMPLICATIONS OF
COMPLEMENTARY REFLECTION IN HUMAN RIGHTS AND OBLIGATIONS
3.1 Extended natural rights
The idea of transcendent complementary unity of consciousness implies
that all human beings are beneficiaries of all forms of goodness we find in the
world irrespective of their origin since they constitute an integral part of
our being. Every human being benefits
of the immense grandeur that sustains our being. We reciprocally share all missing links of reality. In as much as we are integral parts of the
totality of being, complementary consciousness considers it a natural right to
benefit from one another since all autonomies gain legitimacy from co-determination
(Asouzu, 2004:479). All forms of personal
ownership and entitlements, all forms of claims and rights, have moments of
co-ownership and mutual rights, within the realm of transcendent complementary
unity of consciousness. Asouzu argues
that, there is a form of extended natural rights in our ownership of goods and
services (Asouzu, 2004:479).
Co-determination and extended natural rights connote extended natural
responsibilities. Our extended natural
rights and obligations make us mutually co-responsible in our human endeavours,
successes and failures. Since
complementarism as modus vivendi entails relative human relationship, existence
as a mutually lived affair, all components of a system are bound to one another
in the manner of a transcendent unity of consciousness (Asouzu, 2004:481). In
such a mutually lived affair, rights and duty, privileges, and obligations, and
responsibility are closely related.
Extended natural responsibilities enable us to understand while oil
producing countries are taxed because of environmental pollution. Here one can allude to the polluter pays
principle under which an agent responsible for environmental pollution is
charged to pay for such pollution (Ugbe, 2003).
Asouzu submits that our mutual dependence is a necessary consequence of
our historicity. And so, we owe our
relative existence the greatest gratitude since it is as missing links of
reality and in the combination of all possible missing links that are our
relative existence is at all thinkable and liveable (Asouzu, 481).
A transcendent complementary unity of consciousness was implicit in
Whitehead who saw reality as a process.
He conceived reality in terms of connection and thus was able to
appropriate being in terms of interconnectedness of entities in the reality of
becoming. Even before him, the great
thinker of Konnigsberg sought for complementary thinking both in the theory of
knowledge and in practical philosophy. In the sphere of epistemology, Kant
mediated or rather sought a complementation of rationalism and empiricism in
the synthetic a priori. Driven by this
self same transcendent complementary unity of consciousness, he considered
right as the comprehension of conditions under which the voluntary actions of
any one person can be harmonized in reality with the voluntary actions of every
other person, according to a universal law of freedom (Kant, Metaphysics of
morals). For Kant, there is only innate
right: the birth right of freedom.
The recognition of and protection of human rights and fundamental
freedoms of individuals and groups is a positive canon of harmonious
co-existence of peoples. And cases of
unlawful infringement of an encroachment into rights and freedoms of others are
deviant from truth and authenticity criterion.
Truth and authenticity criterion entails that no unit is an
absolute. It decries all forms of
exclusiveness. Any acts that negate the
fundamental rights and freedoms of individuals and people, stem from same
forces that have always held our being back in our attempt to excel and regain
true authenticity. In all spheres of
the globe these rights and freedoms are still being negated, but the mass
media, fed by ideological propaganda of those who are deciding the destiny of
the world and become world “pontiffs” in democratic cloak, only announce human
rights violations in the East and the South.
Beyond, over and above pessimistic manouvres, complementary reflection
can be seen as a philosophy of peace.
When the voluntary actions of any one person can be harmonized in
reality with the voluntary actions of every other person, when the voluntary
actions of one nation can be harmonized in reality with the voluntary actions
of every other nation, the consequence will be the realization of the joy of
being. When this complementation occurs we shall find peace, given here as the
state of harmony between units. This
peace is needed for perpetuation of being. Peace is necessary for being and
continuity. And the peace of the unit
of a system is the peace of that system.
The unity in the unit of a system is the unity of that system.
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