Droits of the man

                  Droits of the man

1		PRESENTATION

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.

2

AN IDEA DEVOTED BY PHILOSOPHY

2. 1

Origins of the humans right

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.

2. 2

Definition of a universal community

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".

2. 3

Critical of the humans right

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.

3		A POSITIVE LEGAL PRINCIPLE

3. 1

Bases of the legislation of the humans right

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.

3. 2

Jurisdictional protection in France

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.

3.2. 1

The constitutional Council

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).

3.2. 2

Jurisdictions of the legal order

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.

3.2. 3

Administrative jurisdiction

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.

3. 3		Jurisdictional protection within the international framework

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.