law of the human
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1
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PRESENTATION
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Declaration of the rights of man and of
the citizen
Spades, beams and Phrygian cap fall under the revolutionary symbolic
system, which multiplies the references to Antiquity. The top of the table, the
figure of France breaking the chains of oppression answers the winged Freedom
whose sceptre is pointed towards the radiating triangle of the Equality, in the
center of which the eye incarne the Vigilance.Jean-Jacques François the Barber
(allotted to), Declaration of the rights of man and of the citizen [ 1789 ],
"Monarchy, holding the broken chains of Tyranny, and the genius of the
Nation, holding the spectrum of the capacity, surround the preamble of the
declaration", end of the xviii E century. Oil on wood, 71 × 56 cm. Museum
Carnavalet, Paris.
humans right, together of the basic rights inherent in the human nature.
Resulting from the designs of the natural right, which melt their
philosophical statute, the humans right were the subject of a progressive
recognition in substantive law since the proclamation of the Declaration of the
rights of man and of the citizen by the French revolutionists in 1789. This
recognition results today in increased jurisdictional protection a as well at
the European level as at the national level. Indeed, of many States, whose
France, obtained mechanisms supporting the recourse in front of the judge in
the event of attack to the humans right such as they are guaranteed by the
texts of international significance.
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2
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AN IDEA DEVOTED BY PHILOSOPHY
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2. 1
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Origins of the humans right
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If the design of the humans right derives essentially from the theories
from the natural right, it however also borrows from those of the
"historical right". Founded by
the Treaty of the right of the war
and the peace (1625) of Hugo
Grotius, in particular developed by the totalitarian vision of Léviathan
(1651) of Thomas Hobbes and by the
democratic theories of the social Contract (1762) of Jean-Jacques Rousseau, the natural
right is based on the abstract figure of the individual to the state of nature
and on the concept, variously interpreted, of "social contract".
Beyond their oppositions, the feature common to all the designs jusnaturalists,
concerned by Pufendorf (1632-1694) in its study
Swears Naturae and Gentium ("natural right and law of nations",
1672), is to give to the capacity an undeniable rational base which makes it
possible to the individuals to escape arbitrary and to find spaces of freedoms.
The theorists of the historical right did not design the State like a
machine, made independent wheels, but rather like an organization, fact of
members and bodies which can exist and develop only because they are primarily
related the ones to the others. Defended in Germany by Savigny (1779-1861), the
school of the historical right posed in theory that it was not "any human
existence which fully singular and is isolated perfectly". The historical
right did not pose the problems in term of social contract or association, but
in term of institution, possibilities of integration, or "right of
resistance" of the citizen to the social pressure. It brought to the
designs humans right the idea that the institutions proceeded of the habit more
often than of the reflexion, and than the individuals could exert a determining
influence on their evolution.
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2. 2
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Definition of a universal community
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In the history, the idea that one was done rights of each one varied
according to times'. The Romans founded certainly a whole of rights, but their
pleasure was exclusively reserved to the citizens. The feudal order distinguished
between the rights of the lords and those of the commoners, organizing a
company where the rights which each one held were related directly to its
social state. A long time one limited the recognition of the rights to the
membership. The idea that the individuals can recognize themselves in a
community vaster than that of the nations or ethnos groups is relatively
recent.It echoes the diffusion of the accounts of voyage and with discovered
other people, and gave place to an awakening only with the diffusion of the
spirit of the Lights, if one excludes Las Put.
In Base of the metaphysics of
manners (1785), Kant managed to
state the philosophical principle on which were grafted the whole of the humans
right. Humanity must always be also treated "like an end, and never simply
like a means". While abstaining from any cultural or religious reference,
to speak only about the man, the thought was detached from particularisms to
aim to the universality. Its essential contribution consists, according to words'
of Simone Weil, to push back, in the public affairs, temptation to consider
that "the community is above human being".
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2. 3
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Critical of the humans right
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Marx, who underlined the difference existing between formal freedoms and
real freedoms, reproached the concept of humans right to limit itself to an
"egoistic" design of the individual interests, based on the right of
ownership and the theoretical opposition between the individual and the
company. The evolution of the means of production and communication in the
contemporary world reinforced the weight of this criticism by underlining the
inequalities between the men. It is to be noticed, however, that the critic
Marxist, expressed in particular in the Jewish Question (1843), did not relate to the idea even of the
humans right, but on the interpretation which had been done by it in the
American Constitution and in those which claim heritage of the French revolution.
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3
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A POSITIVE LEGAL PRINCIPLE
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3. 1
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Bases of the legislation of the humans
right
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The large text of reference is the Declaration of the rights of man and
of the citizen of 27 August 1789, rich of seventeen articles, which solemnly
proclaims a certain number of basic rights. The Declaration of 1789 finds its
origin, not only in the designs of the natural right, but also in a certain
tradition of the Christianity, which makes Gospels the base of an egalitarian
philosophy. In a very different way, these two currents however allowed the
evolution of mentalities towards the recognition of rights attached to quality
of Man. More directly, the writings of the philosophers of the Lights, such
Jean-Jacques Rousseau, in particular his famous work entitled Of the
social contract (1762), as well as
the Declaration of independence of July 4, 1776, written by Thomas Jefferson,
and the Declaration of the Capital duties of the State of Virginia of June 12,
1776, constituted the essence of the inspiration of the revolutionists of 1789.
The Declaration of 1789 thus indicates which are the rights inherent in
the human nature, which cover at the same time the rights of the person (see public
Libertés), but also the political rights (right to the participation in the
public affairs) and, for certain analysts, the social rights, without however
guaranteeing their promotion juridically. This last point constitutes one of
ambiguities of the concept: indeed, the humans right seem an ideal to reach,
and nothing guarantees that the whole of the political régimes concretely
implement them.
In France, however, the Constitution of the O C République renews
solemnly in its preamble "its attachment with the humans right such as
they are defined by the Declaration of 1789" and thus gives a constitutional
range to these rights. The French substantive law gives by a the great majority
of them a normative character, and attaches to their recognition a protective
legal status. Thus are protected by the intermediary from the various branches
from the right (civil law, criminal law, administrative law) the right to
freedom, the property, the safety of the people, the right to resist
oppression, etc.
The humans right do not correspond exactly to the concept of public
freedoms, which one can define as the whole of the legal standards which
guarantee the exercise of the rights and freedoms. The right of public freedoms
thus constitutes part of the substantive law of the humans right, but it does
not exhaust the concept, insofar as all the humans right necessarily did not
receive legal dedication.
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3. 2
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Jurisdictional protection in France
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The protection of the humans right in France is exerted at the same time
with respect to the law and the administration, when they are likely to attack
the humans right and to the public freedoms guaranteed by the Preamble to the
French Constitution of October 4, 1958 and by the Constitution itself.
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3.2. 1
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The constitutional Council
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In the exercise of its mission, the constitutional Council can prevent
that a proposal or a bill which would violate one of the constitutional
provisions does not come into effect while censuring the text which is
subjected to him. Thus, the constitutional Council, in its decision of January
9, 1980, censured the law establishing the procedure of expulsion from abroad which envisaged the
intervention of a judge only at the end of seven days, estimating that
"the personal freedom [ could ] to be safeguarded only if the judge
intervenes as soon as possible possible" (see Immigration).
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3.2. 2
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Jurisdictions of the legal order
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Article 66 of the Constitution lays out expressly that the legal
authority is guardian of freedoms and, for this reason, the judges of the legal
order (civil judge and penal judge) are the natural persons in charge for the
jurisdictional protection of the rights and freedoms. In accordance with
article 136 of the Code of penal procedure, only the legal jurisdictions are qualified
to come to a conclusion about all the arbitrary cases of detention, that the
Constitution, in its article 66, prohibits by principle. Only the penal judge,
in the name of the principle of plenitude of jurisdiction, can appreciate the
legality of the notes taken by the administration (payments, decrees) being
used as base with the continuations and decide cancellation of it if it
considers their contents illegal. However, it does not have the capacity to
grant a compensation to the victim, this capacity being reserved with the
administrative jurisdictions. Lastly, the legal judge, with penal as with
civil, has the capacity to make good the damage undergone by the victims of way
in fact, term indicating any situation where the administration carried reached
to a fundamental freedom or made a particularly serious irregularity.
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3.2. 3
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Administrative jurisdiction
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The role of the administrative jurisdictions is also very significant,
since the judges of the administrative order are brought to judge acts of the
administration and its agents which undermine the humans right and to public
freedoms. The administrative judge intervenes on the level of the
administrative acts taken by the authorities, which it can cancel or suspend
within the framework of the procedure of the recourse for abuse of power. This
jurisdictional recourse allows managed to make cancel regulations which violate
their basic rights. The procedure of the recourse for abuse of power,
obligatorily directed against a decision, obeys particularly simple rules,
since one can write his request on plain paper and that the assistance of a
lawyer is not obligatory, which ensures a very easy access of the whole of
justiciable the administrative courts.
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3. 3
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Jurisdictional protection within the
international framework
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Rogers (Richard), European Court of the
humans right (Strasbourg)
The new palate of the European Court of the humans right in Strasbourg
was built in 1995 and was drawn by the architect Richard Rogers.
There is not truly international jurisdiction gathering under its
competence the whole of the Member States of the United Nations, which would
have the role to ensure the protection of the humans right that many
conventions proclaim (universal Declaration of the humans right of 1948, Pactes
of 1966). On the other hand, at the European level, it was instituted within the
framework of the Council of Europe, a directly charged body and exclusively to
examine and judge the violations by States as regards humans right and of
public freedoms, the European Court of the humans right.
The text of reference which melts the recourse to the Court is the
European Convention of the humans right and of fundamental freedoms, adopted in
1950. Convention sanctions many rights, which they are individual or
collective, like the right to the freedom of expression, the freedom of
conscience, the respect of the private life, or the right to the association
and right to meet. Convention establishes a jurisdictional procedure complexes
making it possible either the States or with the individuals, if their State of
origin accepted the individual recourse, to make available of the Court the
violations of Convention. At the end of the procedure, the State can be
condemned to pour damages with the victim, but, generally, such a judgment
encourages the State condemned to adopt a new legislation in conformity with
the European Convention of safeguard of the humans right and of fundamental
freedoms.
Within the Organization of the American States (OAS), gathering
trente-trois States of the America zone, there is also a court, called
inter-American Cour of the humans right, whose role and missions are similar to
those of the European Court of the humans right. In the same way, the
Organization of African Unity devoted its attachment to the humans right in
1981 by adopting a African Charter of the humans right and People and by
founding a commission also charged to make apply the provisions of the Charter,
which however does not envisage the creation of a purely jurisdictional body.
