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Published online by Cambridge University Press: 01 August 2014
When President Roosevelt proclaimed the “Four Freedoms” in 1941, he accepted a new conception of human rights far removed from the natural rights of the seventeenth and eighteenth centuries. The conception of rights which inspired the British Bill of Rights (1689), the Declaration of Independence (1776) and the Declaration of the Rights of Man and Citizen (1789) is grounded in simple natural law notions. Man was believed to have a fixed and unalterable nature, to be endowed with reason, which gave him certain rights without which he ceased to be a human being. These natural rights, summed up in the Lockean formula of “life, liberty and property” (later broadened to include the pursuit of happiness), were largely concerned with protecting the individual person against governmental power. Each man was seen as entitled to a personal sphere of autonomy, more especially of religious conviction and property; the inner and the outer man in his basic self-realization and self-fulfillment. These rights depended in turn upon the still more crucial right to life-that is to say, to the self itself in terms of physical survival and protection against bodily harm. This right to life was recognized even by absolutists, like Thomas Hobbes. It was believed immutable, inalienable, inviolable. Locke exclaimed at one point that these rights no one had the power to part with, and hence no government could ever acquire the right to violate them.
Presidential address delivered at the 1963 Annual Meeting of the American Political Science Association New York City, Commodore Hotel, September 4–7, 1963.
1 Friedrich, Carl J. and McCloskey, Robert G., From the Declaration of Independence to the Constitution—The Roots of American Constitutionalism (1954)Google Scholar; Friedrich, Carl J., “Rights, Liberties, Freedoms,” University of Pennsylvania Law Review, Vol. 91, pp. 312 ff. (1942)CrossRefGoogle Scholar.
2 Becker, Carl L., The Declaration of Independence (1922)Google Scholar; von Eckhardt, Ursala M., The Pursuit of Happiness (1959)Google Scholar. It continues to be the concept of many; e.g., Mr.Black, Justice Hugo L., in his recent contribution to a collective volume entitled The Great Rights (ed. Cahn, Edmond, 1963)Google Scholar, speaks of rights as provisions that “protect individual liberty by barring government – from acting in a particular area or from acting except under certain prescribed procedures.” (p. 43) That was precisely the formula of the French Declaration of 1789; it animates the British and American tradition of the seventeenth and eighteenth centuries throughout.
3 From the vast literature on human rights, the following might be selected: Lauterpacht, H., International Law and Human Rights (1951)Google Scholar; Mirkine-Guetzevitch, B. and Prelot, M., “Chrestomathie des Droits de l'Homme,” Politique (1960)Google Scholar, containing a number of essays of historical and comparative outlook; Chafee, Zechariah Jr., Three Human Rights in the Constitution (1956)Google Scholar; the same: How Human Rights got into the Constitution (1952); Chafee, has also published a collection, Documents on Fundamental Human Rights (3 pamphlets, 1951–1952)Google Scholar; Pound, Roscoe, The Development of Constitutional Guarantees of Liberty (1957)Google Scholar; in 1959, a report was published of the United States Commission on Civil Rights and an abbreviation of it under the title With Liberty and Justice for All this report concentrates on voting, education and housing, i.e., in our terminology, one civil liberty and two social rights or freedoms.
4 Mill, John Stuart, On Liberty (1861)Google Scholar, and volume V of Nomos, entitled “Liberty” and devoted to an exploration of Mill's thought; note also that the definition given is of course not meant to been exhaustive one; cf. my Constitutional Government and Democracy (1959), pp. 428 ffGoogle Scholar.
5 Cranston, Maurice, Human Rights (1963)Google Scholar; cf. also Krieger, Leonard, “Stages in the History of Freedom,” in Nomos, IV (1962)Google Scholar, for perspective.
6 Cranston, op. cit., does not wish to admit this, and argues to the contrary. A similar position is adopted by Berlin, Isaiah, Two Concepts of Liberty (1958), p. 44–45Google Scholar, who calls it a “hybrid form of freedom.” Actually, it was already recognized during the French Revolution, following Rousseau.
7 Cranston, op. cit., pp. 66 ff.
8 Arts. 22–28.
9 The right to work is actually not new; it was explicitly urged even before the French Revolution by Turgot, who in the Edit sur l'abolition des jurandes, 1776Google Scholar, wrote: “Dieu, en donnant á l'homme des besoins, en lui rendant necessaire la ressource du travail, a fait du droit de travailler la propriété de tout l'homme, et cette propriété est la première, la plus sacrée et la plus imprescriptible de toutes.” It appears in Robespierre's proposal of a restatement of the Droits de l'homme et du Citoyen of April 24, 1793. See for these texts “Chrestomathie des Droits de l'Homme,” in Politique—Revue Internationale des Doctrines et des Institutions, 1960, Nrs. 10–13, pp. 179–80 and 248Google Scholar. The classic Declaration is reprinted there on pp. 246–249. In this collection is also found the next Declaration of 1793. Cf. also the discussion, op. cit. by McCloskey and myself, on the American rights.
10 In The Great Rights, ed. Cahn, Edmond, 1963Google Scholar, the distinguished authors still largely operate with that notion, esp. Justice Black.
11 Art. 24 of Universal Declaration.
12 Friedrich, Carl J., Middle Road to Freedom (1959)Google Scholar; Munoz-Amato, Pedro, Introduccion a la administracion publica (1954–1957)Google Scholar.
13 Cf. Anschütz, Gerhard, Die Verfassung des Deutschen Reiches … ein Kommentar, 14th ed. 1933, esp. pp. 505 ffGoogle Scholar. and the literature there cited.
14 This right is related to the freedom of self-realization, of course. This freedom was found, in the history of philosophy, to be one of three, the Other two being the freedom of self-perfection and of self-determination; but we wish it to be understood to comprehend these other two to be included under it-for self-determination is involved in self-realization, looked at from the viewpoint of the acting self, and self-perfection is the Bpecial form which self-realization takes in those human beings who are capable of the convictional trust of a higher destiny. Cf. Adler, Mortimer J., The Idea of Freedom, vol. I (1958), pp.606 ff.Google Scholar, for the trichotomy. It has recently been interestingly commented upon by Cassinelli, C. W. in an (as yet unpublished) study entitled Freedom, Control and Influence: An Analysis (1963), esp. ch. 1, IIIGoogle Scholar. Cassinelli retains, however, the trichotomy and does not develop the notion that self-realization comprehends the other two. Quite contrary to these prevailing views Berlin, Isaiah, Two Concepts of Liberty (1958), p. 25 ff.Google Scholar, would restrict “self-realization” to the concept of freedom of the idealist philosophers-it is really a form of the doctrine of self-perfection.
15 Cf. Dietze, Gottfried, In Defense of Property (1963)Google Scholar, argues for the return to an earlier conception.
16 Jugoslav Constitution, arts. 23, 25. Cf. also the commentary by Kardelj, Edvard, “On the Principles of the Preliminary Draft of the New Constitution of Socialist Yugoslavia,” in The New Yugoslav Law (1962), esp. pp. 16–17Google Scholar. In order to justify this, a distinction is being drawn between private and personal property.
17 Cf. Smith, Page, John Adams (1963), vol. I, p. 79Google Scholar.
18 Brown v. Board of Education of Topeka, 347 U. S. 483 (1954), over-ruling the decision of Plessy v. Ferguson (1896), which had established the principle of equal but separate education. The situation existing under that principle is admirably analyzed and put into context by Myrdal, Gunnar (with Richard Sterner and Arnold Rose), An American Dilemma (1944), ch. 41Google Scholar. Cf. also the discussion in The Report of the United States Commission on Civil Rights (1959), and the helpful abridgment entitled With Liberty and Justice for All (1959), esp. Part III, pp. 101–137Google Scholar. The rapid progress which is being made in equalizing facilities can be gleaned from SERS, Southern Schools: Progress and Problems (1959), especially the valuable statistical material; cf. also the special issue of the Harvard Educational Review, Summer 1960, entitled “Negro Education in the United States.”
19 For this movement and its literature see my article, “The Political Thought of Neoliberalism,” in this Review, Vol. 49 (1955), pp. 509ffGoogle Scholar.
20 See footnote 9 above.
21 Commonwealth v. Michael C. McCleary, Nov. 29, 1962.
22 Justice William O. Douglas in op. cit (Cahn ed.), p. 149.
23 See Comité del Gobernador para el Estudio de los Derechos Civiles en Puerto Rico, Informe al Honorable Governador del Estado Libro Associado de Puerto Rico (1959)Google Scholar. The lack of knowledge in the United States is affirmed by Douglas in the paper just cited, p. 155.
24 This was perhaps never more vividly and movingly done than by Howard Fast in his historical novel, Freedom Road. Cf. also Buck, Paul H., Road to Reunion (1937), pp. 67ff.; 276ffGoogle Scholar.
25 For a descriptive account, see Key, V. O. Jr., Southern Politics (1949), ch. 26Google Scholar. Amendment XIV, in the second sentence states: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; …” Yet in spite of the imperative form of the language, such privileges and immunities (rights) have been abridged continually, and the efforts to secure a remedy through the courts and legislatures have been successful only to a very limited extent. The inherent difficulties have been analyzed rather persuasively by Peltason, Jack W., Fifty-eight Lonely Men (1962)Google Scholar. Cf. also the judgment of Edmond Cahn that “… the Court … could have won much greater gains for human freedom …” op. cit. p. 8. The recently advanced claim that the XIV Amendment is invalid, because of the way it was voted is, to say the least, untenable, Cf. David Lawrence on Aug. 17, 1963.
26 United Nations Declaration, Art. 29.
27 Kant's formula is perhaps the most widely-known, but it is also found in Locke and many others in similar forms; perhaps Kant's owes its fame to the explicitly imperative form: “Act so that …” Die Metaphysik der Sitten (Kant's, ImmanuelWerke, ed. Cassirer, E., vol. viiGoogle Scholar, Pt. I, Rechtslehre, Einleitung, p. 17.) Cf. also the comprehensive review by Mortimer Adler, cited above fn. 13. As a result, all attempts at stating the idea of freedom merely in terms of absence of restraints, impediments or interferences by others have always foundered upon the rock of a moral injection: freedom ought not be equated with license. However, unless the abuse of freedom is included, freedom is at the mercy of anyone's self-proclaimed notions on right use. This is the basic dialectic difficulty which Oppenheim, Felix E., Dimensions of Freedom (1961)CrossRefGoogle Scholar, seeks to deal with, as does Cassinelli in the work referred to above, fn. 13.
28 Loewenstein, Karl, Verfassungslehre (1959), pp. 153ffGoogle Scholar. has developed the notion of a semantic constitution; in analogy one could speak of “semantic” human rights. Cf. Sartori, Giovanni, “Constitutionalism: A Preliminary Discussion,” this Review, Vol. 56 (12 1962), pp. 853–865Google Scholar argues for the term “façade” constitution.
29 A. I. Lepyoshkin (Moscow) “The Notion of the Constitution: Role and Significance of the Constitution of the USSR for the Political Life of Society,” unpubl. paper prepared for IPSA conference at Freudenstadt, 1962, p. 15.
30 Thomas Hobbes, Leviathan ch. xiv. Cf. also ch. xxxxi, where we are told that God's “rights of nature” are “derived from his irresistible power” and hence without limits.
31 Leviathan, xvii. Hobbes defines these powers by paraphrasing the traditional jura majestatis.
32 Locke, John, Two Treatises, second Tr. para. 149Google Scholar. Cf. also my paraphrase in Constitutional Government and Democarcy (1950), p. 130Google Scholar, where the issue of an “inherent” right is transformed by relating it to the constituent power. Strauss, Leo, Natural Right and History (1953)Google Scholar, obscures the sharp difference, because he identifies the self in Hobbes and Locke; they are quite different.
33 Ibid, para. 155.
34 The Letter of Rev. Martin Luther King, Jr. has been reprinted in various journals; I have used the reprint in The New Leader, July, 1963. There is a remarkable similarity between this letter and some of the arguments in Baldwin's, JamesNobody knows my Name (1954)Google Scholar, esp. Pt. I, sections 3–6.
35 Myersi, D. P. “The European Commission on Human Rights,” American Journal of International Law, Vol. 50 (1956)Google Scholar; Robertson, A. H., “The European Court of Human Rights,” International and Comparative Law Quarterly (1959)Google Scholar.
36 Holcombe, A. H., Human Rights in the Modern World (1948)Google Scholar; H. Lauterpacht, as cited above fn. 3.
37 Friedrich, C. J. and Brzezinski, Z. K., Totalitarian Dictatorship and Autocracy (1956), ch. 20Google Scholar and the literature here cited. There have been claims that freedom of association is increasing in some of the totalitarian states, notably Poland, but the evidence is scanty and unconvincing.
38 See Friedrich, C. J., Man and His Government (1963)Google Scholar, chs. 20 and 21 for more extended treatment.
39 Isaiah Berlin, among others, in the study cited above fn. 13 has suggested that such “collective” efforts at securing freedom ought to be excluded from a consideration of freedom, or be considered a “hybrid form.” But this position seems questionable; it is interesting in this connection that Locke justified the state of nature by reference to sovereignty, para. 14.
40 Huyzinga, Johan, Homo Ludens (1938)Google Scholar, especially the sections on myths as a phase of culture as play, and section 9 on philosophy as a form of play.
41 Mr. Justice Douglas in op. cit. (ed. Edmond Cahn), pp. 146ff. The legislation on civil rights now before Congress seeks to accomplish just that.
42 Everson v. Board of Education, 330 U. S. 1 (1947), Cf. also the interesting discussion of the problem of priority in particular reference to economic due process in McCloskey, Robert G., “Economic Due Process and the Supreme Court: An Exhumation and Reburial,” in The Supreme Court Review, 1962, esp at p. 46ffGoogle Scholar.
43 Cardozo, Benjamin N., The Nature of the Judicial Process (1921)Google Scholar; the literature on this subject is, of course, enormous.
44 In the last analysis, only the common man himself can be the guardian of his rights, the rights common to all men. What the intellectual needs to remember, and often does not, is that he too is a common man, that is to say a communal man (as contrasted with the mass man) when he steps into the market place and participates in the affairs of the community. Cf. my The New Belief in the Common Man (1942), in which the destructive pessimism of Fromm's, ErichEscape from Freedom (1941)Google Scholar is rejected, though the book was unknown to me at the time.
45 Mr. Justice Black in op. cit. (ed. Edmond Cahn), esp. pp. 57ff.
46 Cf. my Constitutional Reason of State (1957), for a more elaborate statement in the perspective of the history of political theory.
47 Jefferson, Thomas, Writings (1859), vol. viiiGoogle Scholar.
48 See the Report of the Commission, cited above fn. 18, passim, for a broad and persuasive statement.
49 This involves a candid appraisal of the role of the military in a free society, and a clear appreciation of the dangers of a political military force. Only a military profession strongly rooted in an understanding of the constitutional order and its theoretical moorings can provide adequate security. Germany's error ought, at all costs, to be avoided, rather than made the basis of our approach, as was done by Huntington, Samuel P., in The Soldier and the State (1957), esp. chs. 5 and 6Google Scholar. Cf. contra Huntington, Stern, Frederick Martin, The Citizen Army (1957)Google Scholar, who, for a motto, cites George Washington: “When we assumed the soldier, we did not lay aside the citizen.”
50 Op. cit. fn. 46, pp. 117–9.
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