The knowledge on human rights is a branch situated someplace between philosophy, ethics in
particular, many branches of law, and political sciences. It emerged in its modern shape after World War II
but its roots can be sought in ancient times, the Middle Ages, and especially in the thought of
Enlightenment. Human rights were neither studied nor taught in the communist world: the name itself,
however, supplemented with the adjective “socialist”, could be heard in the 1970s and 1980s, intentionally
obliterating and dimming the forceful ideas coming from the West which were called “bourgeois human
rights” within the bloc.
In the 1990s, the conception of human rights spread rapidly in Poland. Yet the nearly half a century
of lagging behind can hardly be made up for in several years, all the more so as many misunderstandings
arise also in connection with other terms related but indirectly to human rights – such as democracy, the
left and right wing etc. - whose meaning was distorted first by the ideology of People's Poland and
afterwards by politicians of the period of systemic transformation.
You cannot possibly discuss anything without previously agreeing the meaning of the basic terms.
Therefore, without trying to find any generally accepted definitions (which do not exist anyway), let us now
make an attempt at specifying the basic notions to be used during our discussion of human rights.
The first issue which is often misunderstood is the term “democracy”. Journalist frequently ask
about the sense of being engaged in human rights as “we already have democracy after all”. They identify
democracy with majority rule, evidenced in their opinion by honest free elections. Admittedly, there is
majority rule in today's Poland. But this rule is sometimes extremely cruel to individuals and to all kinds of
minorities, as is illustrated by the history of mankind. To quote just one example, let us mention Socrates
whose death sentence, passed by the majority, hardly added to the glory of Athens. Ask any group of
people to compile a list of 10 or 20 traits characterizing them personally and their situation – and most of
the traits thus mentioned turn out to be minority ones. The majority, instead, tend to neglect the problems
of minorities and sometimes even to be hostile to them. Therefore, unrestricted majority rule poses danger
to individuals and groups. For this reason, what we are going to treat as democracy in our discussions is
restricted majority rule, limited by a set of rights and freedomsThe knowledge on human rights is a branch situated someplace between philosophy, ethics in
particular, many branches of law, and political sciences. It emerged in its modern shape after World War II
but its roots can be sought in ancient times, the Middle Ages, and especially in the thought of
Enlightenment. Human rights were neither studied nor taught in the communist world: the name itself,
however, supplemented with the adjective “socialist”, could be heard in the 1970s and 1980s, intentionally
obliterating and dimming the forceful ideas coming from the West which were called “bourgeois human
rights” within the bloc.
In the 1990s, the conception of human rights spread rapidly in Poland. Yet the nearly half a century
of lagging behind can hardly be made up for in several years, all the more so as many misunderstandings
arise also in connection with other terms related but indirectly to human rights – such as democracy, the
left and right wing etc. - whose meaning was distorted first by the ideology of People's Poland and
afterwards by politicians of the period of systemic transformation.
You cannot possibly discuss anything without previously agreeing the meaning of the basic terms.
Therefore, without trying to find any generally accepted definitions (which do not exist anyway), let us now
make an attempt at specifying the basic notions to be used during our discussion of human rights.
The first issue which is often misunderstood is the term “democracy”. Journalist frequently ask
about the sense of being engaged in human rights as “we already have democracy after all”. They identify
democracy with majority rule, evidenced in their opinion by honest free elections. Admittedly, there is
majority rule in today's Poland. But this rule is sometimes extremely cruel to individuals and to all kinds of
minorities, as is illustrated by the history of mankind. To quote just one example, let us mention Socrates
whose death sentence, passed by the majority, hardly added to the glory of Athens. Ask any group of
people to compile a list of 10 or 20 traits characterizing them personally and their situation – and most of
the traits thus mentioned turn out to be minority ones. The majority, instead, tend to neglect the problems
of minorities and sometimes even to be hostile to them. Therefore, unrestricted majority rule poses danger
to individuals and groups. For this reason, what we are going to treat as democracy in our discussions is
restricted majority rule, limited by a set of rights and freedoms that are due to individuals and may not
be violated by the majority. This way, individual rights and freedoms limit the majority will.
The principle of limited power is often called that of constitutionalism. Today, it is asually reflected
in chapters of written constitutions, the chapter in question being those on human rights and freedom. In
particular, they place restrictions on the power of the legislature, forbidding parliamentarians to raise their
hands and vote that tomorrow all thieves should be hanged, all Gypsies should be expelled, or land
should be taken away from its owners. Thus human rights and freedoms set the limits of majority rule
in democratic society.
A notion of great importance for human rights is the rule of law (state ruled by law). “republic of
Poland is a democratic state ruled by law”, Article 1 of valid constitutional provisions states. A state ruled
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by law is one where the rules of the game between the individual and authorities are clear, stable and
generally know. It is a state where the citizen can anticipate, with a very high degree of probability, the
authorities' response to his conduct, this kind of state being governed by clearly stated law and not by
arbitrariness of officials of functionaries.
Of course, a state ruled by law is not necessarily a democratic one, and a democratic state is not
necessarily ruled by law.
Human rights and freedoms are found exclusively in individual's relations to state. This is the
so-called vertical operation of those rights. Attempts at describing relations between individuals on the
grounds of human rights methodics and terminology ( so-called horizontal operation of human rights)
have failed: speaking of human rights today, we mean nothing but the individual-state relations. Naturally,
a person's family life, love, friendship and neighborhood relations give rise to numerous rights and
obligations – these, however, are beyond the sphere of human rights.
Human rights are individual and not collective rights. Their subject is the individual. Therefore, in
the area of human rights we cannot speak of rights of national minorities as this would the language and
domain of politics ( an example of such collective right being e. g. The right to autonomy), but merely of the
rights of persons belonging to national minorities. Similarly, there are no rights of the disabled seen as a
group – merely the rights of each disabled person individually. The sole inconsistence in the differentiation
between individual and collective rights is the introduction in the 1960s into both UN International
Covenant on Human Rights of Article 1 which provides that “nations cannot be deduced from individual
rights: they are typical collective rights. The original reasons for introducing those provisions were
political: today, at any rate, speaking of human rights we mean the rights of individuals and not of nations,
social classes or orders.
There are two basic groups of so-called human rights: substantive and procedural rights.
Substantive rights are specific freedoms and rights due to the individual : freedom of speech,
conscience, religion, and choice of place of residence, right to education etc.
Procedural rights are means of action on the individual's disposal and the related institutions which
make it possible for him to exact the authorities' observance of his freedoms and the enjoyment of his
rights.
The division is not always a clear-cut one: for example, the right to court can be treated as
substantive in some situations ( if the court is used as an arbiter to settle a person's dispute with another
individual), or as procedural in some other ones ( if a person goes before the court to sue and institution
which has violated his rights).
Substantive rights are divided into rights and freedoms. A right (sometimes called positive right)
is the duty of those in power actively to do something for each individual. For example, the right to
education lays on authorities the responsibility for providing a network of schools thus making it possible
for each and every child to receive education. Matters such as payment for such education – either direct
tuition fees or taxation paid to the budget – are of secondary importance here: if, however, a child is
banned from education (due, for example, to absence of an effective system of scholarships in the former
case, we deal with violation of the right to education. Similarly, the right to court is the authorities ' duty to
provide a network of courts for each individual to be able to bring a matter of importance to him before the
court for examination and decision.
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Freedoms (sometimes called negative rights) are bans, imposed on those in power, on interfering
with specific areas of individual life. Freedom of speech, religion, etc. are bans on the state authorities'
interference with those areas of human activity. Briefly, if a person has a right, this means that the
authorities are obliged to do something for that person: in the case of freedom, the authorities are obliged
to abstain from action.
The Polish language tradition sometimes clashes with this classification: literally interpreted, the
right to life would mean that state is to make a person immortal, while what is actually concerned here is
rather a freedom of life. Similarly, the right of assembly is a ban on interfering with peaceful assemblies of
people, whatever their site and slogans – that is, freedom of assembly. Trying to oppose linguistic
standards is a difficult and not too advisable task: yet differentiation between positive and negative rights
is essential.
Some of the rights are called inalienable. They are rights due to the individual which that individual
cannot resign. A document signed by a person and stating that he resigns his personal freedom any yields
himself another person's slave would have no legal effect whatever: it would be irrelevant from the very
start. Effective, instead, is a person's disposal of property: the owner is free to limit his right of ownership
as property is not an inalienable right.
The facts considered that human rights and freedoms take place between the individual and
authorities, it has to be stated that there are three basically different approaches to the nature of such
relations.
The first approach assumes that power comes first: it is those in power who are kind and generous
enough to grant specific rights to the people. Thus what people actually enjoy in terms of rights is what
those in power chose to grant to them. This approach can be found in all communist constitutions1, and
also in some 19th century European ones.
The second approach bases on the model of social contract: the contract is negotiated by those in
power and the people interpreted as a group of individuals (and not as Marxist society which – being a
“new quality” - may have its own aims independent of the will and interest of its members). The ruled
agree to render specific services to the ruling ( as e. g. To pay taxes), and the ruling undertake to do
something for the people ( that is, to fulfill their rights) and to abstain from interfering with specific areas of
their lives ( thus recognizing their freedoms). This kind of contract, more or less to each party's advantage
and supplemented with a description of the machine of power, is often called the constitution.
The third approach is typical of the American thought. Equipped with natural rights and freedoms
which follow from the very essence of their humanity, the people decide to establish a state and to appoint
authorities to make their lives better and more comfortable. For the state to be able to operate, they
voluntarily curtail some their own rights and hand them over for the state's disposal: for example, they limit
their property and agree to pay taxes, or they limit their personal freedom and agree to serve in the army
if necessary.
This model differs basically form the first one mentioned. There, the people only enjoyed the extent
of rights which was granted to them by the ruling: here, instead, the ruling only have as much power as the
people chose to hand over to them. These differences of conception have grave practical consequences.
If we select a legal norm and try to apply it to a specific cleverly chosen example, we get different
decisions depending on the use of the first vs. the third interpretation of the individual–authorities relation.
This means that even identical provisions may shape different social realities. The third approach which
1
Republic of Poland strengthens and extend the rights and freedoms of citizens (Article 67.1 of preserved Constitutional
Provisions of 22 July 1995).
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states that those in power may only do what they are permitted by law while the people may do all
that is not prohibited by law is among the foundations of the conception of human rights. One should
bear it in mind that the sole issue taken into consideration is that of individual–authorities relation, and that
the statement that a person is free to do whatever he is not prohibited by law does but limit the possibility
of coercive interference of state with numerous spheres of our lives, by no means diminishing our moral
obligations towards our next of kin, neighbors or simply fellow humans.
The basic notion of the conception of human rights is inalienable and inherent human dignity of
man, or – to use the language of social teaching of the Catholic Church – dignity of the human person.
Human dignity is related to the very essence of humanity and follows from the fact of being human: it is
due equally to an infant who has never done anything good or bad in his life yet, and to the greatest of
criminals. Human dignity is not the same as personal dignity which actually approximates the noting of
honor. Personal dignity has to be earned: noble deeds make it higher but a person can lose it altogether
through a shameful deed. What matters for human rights, though, is the former dignity – that of the human
being. Its grounds can be found in many different religions and philosophies. To a Christian, it follows from
the facts that created as the image and likeness of Go, man possesses a particle of dignity of his Creator.
However, the actual way in which the existence of human dignity is justified and the specific religion or
philosophy from which that dignity is derived appears not to be of greater importance for our further
reasoning: discussing the consequences of its existence, we ultimately reach highly approximating
catalogs of freedoms and rights due to the individual in his relations with state authority: rights which
protect him against humiliations, abasement, and inhuman treatment by powerful state with its means of
constraint.
Those very rights and freedoms are the sheath and screen protection the dignity of each individual
against an assault by the authorities. Thus what human rights actually do is not to guarantee that a person
will be loved, happy, and prosperous: they do not even guarantee justice and the minimum welfare. They
merely protect individuals against abasement and assaults against their dignity, and that on part of one of
potential violators only but at the same time the most powerful one – state authority which is translated
into majority will in a democratic system.
Human rights make it possible for the individual to preserve his individuality, to survive as a unique
person: there has never been and there will never be anybody just like any one of us, with our individuality
equipment of memories, emotions, and thoughts. The opposite of systems which respect the uniqueness
and individualism of each and every person are totalitarianism creating the “new man”, standardized and
conceived by dictators. Such ideal citizens all say and thinj the same; in the extreme version, they all wear
north-Korean or Chinese uniforms and march or form gigantic tableaux vivants on stadiums in praise of
their Leader and Father or the idea that organizes their lives.
Deduced from human dignity are two basic notions: freedom and equality. Even today, the term
freedom has a somewhat different meaning in North America than in Europe. This results from the two
continents' historical conditions and different situations of their peoples at the close of the 18th century
when the modern conception of human rights was shaped. In America, the settlers went west; fertile lands
were in abundance, and the state they formed was merely to defend them against internal and external
enemies. It was to establish the institution of sheriff and a law enforcement system to protect them from
the former, and an army to defend them from the latter. The Indians were treated as an external enemy.
Any further state interference with settlers' lives would be not merely redundant but even undesirable as it
would reduce their chances for success. Hence the conception of freedom from state: its role reduced to
that of a watchman, state was to perform but the function of defense. At the same time, a provision was
inserted in the Declaration of Independence which spoke of the right to pursue happiness. It was
interpreted as a negative right: Americans are free to pursue happiness, and state is not to interfere with
their pursuit.
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In that same period, Europe had no land to be taken over; most people worked on someone else's
land and were submitted to economic and sometimes also judicial authority of great landowners. Those
People hoped to obtain their freedom form state which had powers to curb their immediate oppressors.
This is how the conception of freedom through state was developed. It was accompanied by
expectations that state would make each individual citizen happy; thus formulated, the right to happiness
was reflected in the documents of the French Revolution. With time, this claim consciousness of the
European conception of freedom found its reflection in the continent's history: it was there that systems
appeared which thought they knew what was good for their people and what would make them happy;
horribly enough, some even tried to carry their into effect.
Used by politicians, the term “equality” can have a variety of meanings. A person with what might
be called a communist ideological background ( to simplify matters somewhat) means equality of
services due, that is of the living conditions. The embodiment of this conception was the slogan that “we
all have the same stomachs” which meant that all people deserve the same.
Used by a socialist, equality means equal opportunities. Entering life, all people should be given
the same opportunities. Later on, a talented and industrious person will go to the top and his opposite will
not; but they should both be equal at the start. This way of thinking appears in conceptions of human rights
in the area of the rights of persons belonging to national and social minorities.
To a liberal, finally, equality means equality of rights and equality before the law. Equality of
rights greatly approximates the ban discriminations, interpreted as any differentiation of rights or
qualifications which lack a rational, nay physical or biological justification. Thus a provision banning a blind
person from driving would not constitute a discrimination due to its rational grounds: instead, it would no
doubt discriminatory if driver's licenses were not issued to blondes or Gypsies. Legal systems free of
discriminatory provisions can be created in practice; but attempts have failed so far to create a system
which would also fulfill the other liberal requirement: equality before the law. All over the world, the rich
and famous receive a better treatment from state functionaries than members of stigmatized and socially
despised groups. A variety of systems are conceived to make up for such differences; nowhere, however,
have such systems proved fully successful. Perhaps the demand that all be treated equally simply cannot
be satisfied which is not to say that we should cease to pursue this aim. Naturally, elements of irrational
differentiation may appear in social or interpersonal relations; this, however, goes beyond our sphere of
interest – the relations between individual and state.
The discussion on equality and freedom provide the point of departure for formulation of catalogs of
substantive rights and development of institutions and procedures to guarantee the observance of
contents of such catalogs by state.
Most substantive rights are limited rights. Of those specified in the European Convention of
Human Rights, only freedom torture and slavery cannot be restricted under any circumstances. Whatever.
As regards the remaining rights, they can be restricted if their exercise clashes with the rights and
freedoms of other persons or with interests such as e. g. Security of state. All restrictions, however, are
only admissible on account of specifically stated aims and have to be introduced statutorily, the
Government not being empowered to imposed them. Admissible is only the smallest possible limitation
which is sufficient to protect the interest with which the exercise of a right proves to collide; and finally, the
form of such limitation must be one which is admissible in a democratic society of free individuals. The
European Court of Human Rights examines cases of limitation of rights for possible violations of the
above four requirements. Groundless under European law is therefore the fear characteristic of persons
who grew up in the communist system that whenever those in power are permitted a limit a right, they will
certainly abolish that right altogether. Limitations are and indeed have to be admissible but their extent
and from are submitted to a most restrictive scrutiny. Thus the possibility of limiting human rights by no
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means acts to abolish their essence. The search for limits to human rights and freedom is often difficult
and gives rise to many conflict, scientific and technological progress causing ever new problems.
A mere recognition of human rights and freedom is but of little importance if no procedures are
provided for each individual effectively to defend himself against violations of those rights. Those in power
invariably tend to violate the rights of the ruled as such violations make ruling more effective and may also
make the road to noble and commendable aims shorter. This tendency can be found among rulers
irrespective of the political system. Hence the fundamental problem of developing procedures to prevent
it: that is, to prevent rulers from taking “shortcuts”. This was particularly noticeable in People's Poland:
despite the fact that the Constitution did provide for specific human rights, and the ratification in 1976 of
the International Covenant on Civil and Political Rights, citizens had no procedural rights. There was no
recourse to the law making it possible to sue a commune official, an officer of the Civil Militia, or a minister
for violation of a person's rights, and a reference to the Constitution or international law met at best with
mild mockery. In developed democracies, agencies and institutions protecting human rights and freedoms
include courts, also administrative and constitutional ones, parliamentary ombudsmen, institutions of
legislative initiative of citizens and of referendum, citizens right of complaint to the constitutional court,
direct application by state institutions of the Constitution and international human rights treaties,
non-governmental organizations operating on the grounds of a proper legislation, the right of petition etc.
Some substantive rights, such as freedom of speech, the right to information on the actions of state
authorities, freedom of assembly and association, are not only protected interests but also instruments
facilitating the protection of other rights. Finally, a good political system with clearly separated and
balanced powers – legislative, executive and judicial – which exercise mutual control also facilitates the
protection of human rights.
Human rights develop with time, their catalog being extended both in domestic systems of states
and in international law (the fact should be borne in mind here that international law provides for the
minimum standard of human rights protection common for states with different traditions and cultures;
further rights and freedoms are added to such generally recognized catalogs by domestic law of individual
states). Beside discussion on further rights, also new problems and threats appear – as e. g. the threat to
the right to privacy posed by the progress in computer science, or new problems related to the limits of
freedom of scientific research. Therefore, new rights and freedoms are formulated: procedures are sought
more effectively to guarantee their observance: and a variety of techniques are employed to prevent those
in power from violating the formally recognized human rights. The tendency to limit individual rights being
an immanent trait of those in power, the majority included, it seems that society's actions on behalf on
human rights will never ceases to be needed. It can be seen today that the more mature a democracy, the
stronger and more numerous the organizations protecting individualism and uniqueness of the human
person against rulers' attempts.
FONTE: HELSINKI FOUNDATION FOR THE HUMAN RIGHTS