What if all people were created equal?

Fundamental rights

Gudula Geuther

Gudula Geuther is the legal and domestic policy correspondent for Deutschlandfunk. As a radio correspondent in Karlsruhe, her work previously focused on observing the courts there, especially the Federal Constitutional Court.

State-guaranteed fundamental rights for everyone are an idea of ​​the Enlightenment. In the USA, Great Britain, France and Germany they had to be asserted against resistance and setbacks.

The American Declaration of Independence of 1776 is based on the idea of ​​inalienable fundamental rights. Thomas Jefferson and Benjamin Franklin were on the committee that drafted the Declaration of Independence. (& copy akg / North Wind Picture Archives)

If the fundamental rights were to be based on the theoretical idea that all human beings are entitled to certain rights, at least approaches for this could be found among the philosophers of Greek and Roman antiquity, such as the followers of the Stoa and the Sophists. But Plato (427 - 347 BC), Aristotle (384 - 322 BC) and Cicero (106 - 43 BC) also dealt with this topic.

If it were a question of securing certain basic rights, their history could at least be traced back to the Middle Ages. The best-known example is the English Magna Charta Libertatum of 1215. The "Great Charter of Freedoms" documented existing noble feudal rights against royal arbitrariness and already bound encroachments on the life and property of free men - that is, that part of the population who opposed the king be able to enforce - on the legal basis.
But what we mean by basic rights, documented rights for every person or every citizen, i.e. a combination of both developments, is much more recent. The development of fundamental rights goes hand in hand with that of the bourgeois constitutional state of the modern age.

Early declarations of fundamental rights

The first catalog that claimed to be a comprehensive list of fundamental rights was the Declaration of Rights of the North American state of Virginia of 1776. It had a significant influence on the Declaration of Independence of the United States of the same year and on the French Declaration of Human and Civil Rights of 1789. Its principles were incorporated into the Bill of Rightswhich were formulated in 1789 and added continuously from 1791 onwards amendments (English: additions) became part of the North American constitution.
The ideas of the Declaration of Rights had a long history: for centuries people in Europe fought for religious freedom. The dispute gave rise to the desire for freedom of opinion and publication, and as a reaction to religious bans on thinking, the desire for academic freedom. The more such ideas of freedom took hold, the louder the demands for other rights, such as the right to personal integrity and protection from violence and arbitrariness.

In his theory, the Englishman Thomas Hobbes (1588 - 1679) started out from an original state in which all people were fundamentally free and equal, but then ended up in a war of all against all, in chaos and anarchy. In order to put a stop to violence and arbitrariness among one another, they agreed to transfer power to a single authority or person who should alone be authorized to intervene in rights such as those to life, freedom and property. This treaty created a state, the rulers of which, however, could not be prevented from exercising their unlimited power, from arbitrariness or mistakes by any right of resistance or replacement procedures - this idea found its realpolitical equivalent in state absolutism of the 17th century.
John Locke (1632 - 1704) takes up Hobbes' theory of the original state of human beings in freedom and equality. According to him, this natural state obeys the law of reason and obliges people and their governments alike to observe it and to respect and protect the life, freedom and property of individual individuals. Violations against it delegitimize a government and give the citizens the right to resist.

Behind this are thoughts of natural law, the idea that every human being has innate rights by nature. Fundamental rights exist because they are given to every human being by nature; the state can neither grant nor withhold them, it has to guarantee them. In the fundamental rights catalog of the Virginia Declaration of Rights if this claim to apply regardless of the respective rule was included, the idea that fundamental rights take precedence over simple law and that a parliament cannot freely dispose of them either. Its Article 1 states that all human beings are "by nature equally free and independent and have certain inherent rights of which, when they enter the state of a society, they cannot deprive or undress their descendants by any treaty, namely enjoyment of life and freedom, with the means to acquire property and property and to strive for and attain happiness and security ".

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The "invention" of human dignity

On December 10, 1948, the General Assembly of the then 56 United Nations passed the "Universal Declaration of Human Rights". In Paris, in the Palais Chaillot on the right bank of the Seine opposite the Eiffel Tower, the vote was taken. 48 states were in favor, no vote against, 8 abstentions. [...]
The declaration was a response to the atrocities, particularly of the German crimes before and during World War II; At that time, immediately after the end of the war, Stalin's monstrous crimes were still diplomatically kept quiet. [...]

There are 30 simple and clearly formulated, mostly short articles. The first consists of two sentences: "All people are born free and equal in dignity and rights. They are endowed with reason and conscience and should meet one another in the spirit of brotherhood."
Here, for the first time, dignity appears as a human right. Just as it was made a legal term 276 years earlier by a German professor in Sweden, by Samuel Pufendorf. His large treatise "De iure naturae et gentium", published in Lund in 1672 and translated into German under the title "Eight books of natural and international law" in 1711, long after his death, was in the late 17th and 18th centuries the most widely translated and widely distributed standard work on the subject. [...]

Human dignity is the basis of his entire system. Second book, first chapter, paragraph 5: "It follows from the dignity of human nature and its excellence, through which man is superior to all other living beings, that his actions are judged according to certain rules. Without such rules there can be no order , no decency, no beauty. And so man has an extraordinary dignity because he has a soul that is immortal and enlightened by the light of his mind and the ability to judge things and choose the right one among various possibilities, and who is also experienced in many arts. "

Natural law is what, in the opinion of the person who writes it, results from human nature. It's like the magician and the rabbit. Before he can get it out of the cylinder, he must have artfully practiced it. In 1961, the philosopher Ernst Bloch in his book "Natural Law and Human Dignity" made a distinction between "preserving" and "demanding". The Greek thinker Aristotle, for example, wrote a preserving one. He said there were people who were tall, slim, smart and capable of commanding. They are by nature free citizens. Others, however, small, stocky and not very intelligent, could only obey and are slaves by nature, physei douloi. So he justified slavery with the nature of man and similarly the subordinate position of women.

The natural law of the 17th and 18th centuries, on the other hand, was a demanding one. The great Dutch legal philosopher Hugo Grotius, for example, Samuel Pufendorf and his Saxon compatriot Christian Thomasius represented it. You wrote against serfdom and bondage, for equality and for the freedom of belief and science, Thomasius also against witch hunts and torture. [...]
At Pufendorf, dignity is called dignatio. This dignity has the burden of a history of more than two thousand years. It started with the Romans. Dignitas or dignatio meant for them the position of an important man, a dignitary who, through his own achievement or birth, stands high above the common people. A typical Roman term, similar to auctoritas, authority. The Greeks didn't know anything like that.

In the Middle Ages, under ecclesiastical influence, the meaning of dignitas, which was associated with the fact that man is an image of God, changed. But the old Roman idea also remained, even in the French human rights declaration of 1789, which proclaimed in Article 6 that every - male - citizen had the same right of access to all offices and dignities, à toutes dignités. A relapse behind the great Saxons and his book of 1672. Pufendorf was better received by the Anglo-Saxons.
The English enlightener John Locke, who twenty years later formulated the first human rights with life, liberty and property - admired and recommended him for the political education of the English youth. Locke's human rights were incorporated into the United States' Declaration of Independence in 1776.

But not only Locke, another Englishman also greatly admired Pufendorf, one of the great lawyers of the 18th century: William Blackstone. His Commentaries on the Laws of England summarize the most important principles of common law adopted in the USA. [...] As recently as 1926, on the 150th anniversary of the Declaration of Independence, US President Calvin Coolidge praised the Germans in the highest tones: his writings "showed the way for the freedom of the American people".
This also describes the path on which Pufendorf's "dignity" reached the UN Declaration of Human Rights in 1948, which was still largely initiated by the USA. Over there, he was valued much more earlier and for a long time than in his German homeland. [...]
And just as he himself returned to Germany late, so did his dignity. Since 1949 it has been in the first article of our Basic Law, Coming Home Again Under the Influence of the UN Human Rights Declaration of 1948.

And Samuel Pufendorf's thought continued to make a career. In 1968 human dignity even made it into the Basic Law of the GDR. Unfortunately without consequences for the citizens of the GDR. From 1974 to 2003 the term was then adopted in the constitution of 15 European countries. Turkey is one of them, the Kingdom of Sweden and the Kingdom of Spain, Greece, Hungary, the Czech Republic, Russia, Poland and, since 2000, even Switzerland. Not a bad result for the old Saxon with the heavy wig. [...]

With all due respect for the scholar, for "Pufi", as the current members of the Pufendorf family affectionately call him, one can safely say: He was not a democrat, but a baroque person of the 17th century and a supporter of the absolutist monarchy. Nor did he take a stand against the persecution of witches and torture like Christian Thomasius a generation later, nor did he formulate any fundamental rights vis-à-vis the state like John Locke, who was the same age. But with human dignity as a right, he showed the way that others then went on until dignity was in the UN's human rights declaration, in our Basic Law and in the constitution of many other European countries.

Uwe Wesel: "Inaccessible", in: Die Zeit, No. 49 of November 27, 2008

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The Declaration of Rights became the model for legal development in North America. In Pennsylvania, the catalog of fundamental rights, also written in 1776, already formed part of the constitution itself.
Admittedly, “all people” as bearers of fundamental rights meant only one part: In accordance with at least the prevailing opinion of the time, slaves were not entitled to fundamental rights, and women were also excluded.
For the fact that the authors of the Declaration so quickly agreed on natural law as the basis of state legitimation, several reasons may have come together: Far from the British crown and the British motherland, the colonists had experienced more freedom and had to prove their independence than the Europeans. The ideas of natural law may therefore have seemed even more obvious to them than to them. In addition, the appeal to inherent human rights also provided a justification for renouncing the power of the British monarch, who threatened to limit the freedom, independence and property of the colonists by levying ever new taxes and duties as well as by increasing administrative influence.
The French Revolution produced the declaration of human and civil rights. In 1795 the Convention passed a revision that included freedom of the press and freedom of expression. Contemporary etching (& copy akg-images)

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From the Declaration of Independence July 4, 1776

The following truths do not require any proof for us: That all human beings are created equal; that they are endowed with certain inalienable rights by their Creator; that life, freedom and the pursuit of happiness are part of it; that in order to safeguard these rights, governments are installed among the people who derive their rightful authority from the consent of the governed; that whenever any form of government becomes detrimental to these ends, the people are entitled to change or abolish them and to set up a new government and to base it on such principles and organize their powers as it is necessary for them to ensure their safety and happiness seems most advisable.


From the Virginia Bill of Rights, June 12, 1776
[…] Part 1.
All human beings are by nature equally free and independent and have certain innate rights, [...] namely the enjoyment of life and freedom, the means of acquiring and possessing property and the striving for and attaining happiness and security.

Section 2.
All power rests in the people and consequently derives from them; the officials are only his agents and servants and are responsible to him at all times.

Section 3.
A government is or should be established for the common good, protection and security of the people, the nation or the general public; [...] the majority of a community has an unquestionable, inalienable and inviolable right to change or abolish a government if it is found to be inappropriate or contrary to these purposes [...].

Section 5.
The legislative and executive powers of the state should be separated and distinguished from the judiciary [...].

Section 12.
The freedom of the press is one of the strong bulwarks of freedom and can only be restricted by despotic governments. [...]

Section 16.
The religion or reverence we owe to our Creator and the way we fulfill it can only be determined by reason and conviction, and not by coercion or violence; therefore all people are equally entitled to exercise their religion freely, according to the voice of their conscience [...].

http://www.unesco-phil.uni-bremen.de/dokumente/
Declarations of Human Rights / Virginia% 20Bill% 20of% 20Rights% 201776.htm

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