基本权利的类别和世代
法律入门：关键概念和定义 ● 国家：职能、结构和政治制度 ● 法律的不同部门 ● 法律渊源 ● 法律的主要形成传统 ● 法律关系的要素 ● 法律的适用 ● 法律的实施 ● 瑞士从起源到20世纪的发展 ● 瑞士的国内法律框架 ● 瑞士的国家结构、政治制度和中立 ● 19世纪末至20世纪中叶国际关系的演变 ● 世界组织 ● 欧洲组织及其与瑞士的关系 ● 基本权利的类别和世代 ● 基本权利的起源 ● 十八世纪末的权利宣言 ● 二十世纪基本权利普遍概念的构建
基本权利以前在 18 世纪被称为 "自然权利"，随着时间的推移已经发生了重大变 化。从历史上看，这些权利被认为是人类生存所固有的、普遍的和不可剥夺的。约翰-洛克和让-雅克-卢梭等哲学家为这些权利的概念化做出了巨大贡献。例如，洛克在 1689 年出版的著作《政府论》中捍卫了生命权、自由权和财产权等自然权利，而卢梭则在 1762 年出版的《社会契约论》中强调了普遍意志和人民主权的重要性。
当时，自然权利被视为普遍的道德原则，不依赖于立法或国家的承认。然而，随着法国大革命和美国《独立宣言》的发表，这些权利开始正式写入法律文件。1789 年法国的《人权和公民权利宣言》是一个重要的转折点，它确认了言论自由、宗教自由和法律面前人人平等等权利。
随着时间的推移，对人权的理解和应用已从哲学角度发展到实际和具有法律约束力的应用。这一转变具体表现为基本权利逐渐被纳入国家宪法和法律。例如，《瑞士联邦宪法》承认并保护一系列基本权利，表明了现代法律框架对这些权利的重视。它不仅保障传统的公民自由和政治自由，而且还保障经济、社会和文化权利，这反映了人权概念在其最初概念之外的扩展。
国家在承认和保护基本权利方面的作用变得至关重要。将这些权利纳入国家立法，使建立保障其实施和尊重的法律机制成为可能。因此，尽管基本权利植根于普遍的和不可剥夺的原则，但现在主要是由各国的法律 框架来界定和保护的。这一发展反映了社会将这些哲学概念制度化的方式，承认它们在保护和尊重个人方面的根本重要性。
四个类别
自由
在基本权利方面，自由在保护和促进个人生存的各个方面发挥着重要作用。它们涉及广泛的行为和活动，为每个人在生活的各个领域实现自己的愿望、做出选择和开展活动提供了空间。
这些自由包括身体和精神两个方面。例如，迁徙自由作为一项基本权利，允许个人在国内自由迁徙和出国旅行。这种自由不仅对个人活动至关重要，而且对职业原因也很重要，例如商人或企业家需要迁徙以发展其业务。从心理学角度讲，这些自由包括言论自由以及思想、良心和宗教自由等权利。这些自由使个人能够表达自己的观点、信奉自己的宗教或遵循自己的信仰，而不必担心受到审查或压制。例如，言论自由是民主社会的根本，因为它支持公开辩论、批评政府和交流思想。此外，个人自由还包括隐私权，保护个人生活中的个人和家庭生活免受不必要的侵扰。在数字时代，这种自由越来越重要，保护个人数据已成为人们关注的主要问题。
基本自由对个人发展和自主至关重要。它们使个人能够追求自己的目标、表达自己的个性并充分参与社会。这些权利受到《世界人权宣言》等各种国际法律文书以及各国宪法和法律的保护。保护和促进这些自由对于维护一个尊重每个人权利的开放、充满活力的社会至关重要。
政治权利
政治权利对民主的运作至关重要，它赋予公民积极参与公共事务管理的能力。这些权利植根于法律制度，反映了公民影响社会政治方向的能力。
投票权是这些特权的核心。无论是通过选举还是全民公决，投票权都为个人提供了就如何治理国家表达意见的直接途径。投票权的历史充满了争取包容的重大斗争。例如，20 世纪初兴起的女权运动在扩大妇女投票权方面发挥了重要作用，这在许多国家都是一个重要的里程碑，如英国通过了 1918 年法案，美国在 1920 年通过了第 19 次修正案。
同时，选举权允许公民选择自己的代表，是代议制民主的支柱。这项权利确保政府反映社会的多样性和偏好。它还允许公平代表不同的意见和利益，从而确保更具包容性和民主的治理。
被选举权同样至关重要。它保证任何个人，只要符合一定的标准，都可以作为候选人参加选举。这一规定促进了开放和充满活力的政治制度，使来自不同背景的人都能为治理做出贡献。来自不同背景的个人有机会参加竞选，这丰富了政治辩论，并鼓励吸纳不同的观点。
这些权利共同构成了现代民主国家公民参与的基石。保护和促进这些权利对于确保政府的合法性和鼓励公民积极参与至关重要。它们是一个社会的保障，在这样的社会中，政治权力不仅可以被利用，而且还能满足全体人民的需求和愿望。
法治保障
The guarantees of the rule of law represent a set of essential fundamental principles and rights that frame and limit the action of the State, both in content and form. The central aim of these guarantees is to ensure that the State complies with fundamental rules, thereby protecting individuals against the abuse of power and promoting justice and fairness in society.
The principle of equality is one of the pillars of these guarantees. It obliges the State to treat all citizens equally, prohibiting any form of arbitrariness or discrimination. This principle finds its origins in historical legal documents such as the Declaration of the Rights of Man and of the Citizen of 1789, which proclaimed the equality of all citizens before the law. The principle of equality aims to ensure that the decisions and actions of the State do not favour or disadvantage certain groups or individuals.
In addition to equality, the guarantees of the rule of law also include respect for legality, meaning that all State actions must be based on the law. This principle is essential to prevent the abuse of power, because it obliges governments and their agents to act in accordance with established laws, which are themselves subject to a democratic process of creation and revision.
The separation of powers is another key element in guaranteeing the rule of law. It implies that the different branches of government (executive, legislative and judicial) must be distinct and balanced in order to avoid excessive concentration of power and allow for a system of checks and balances. This separation ensures that the laws are drawn up, applied and interpreted in an equitable and independent manner.
Finally, the right to a fair trial is a fundamental guarantee of the rule of law. It ensures that anyone accused of an offence has the benefit of due process, access to an independent and impartial court and the opportunity to defend themselves. This right is essential to protect the individual against unfounded accusations and unjust sentences.
These guarantees, by limiting the power of the State and imposing compliance with fundamental rules, are essential for maintaining a fair, equitable and democratic society. They ensure that the State acts responsibly and transparently, respecting the rights and freedoms of every citizen.
Social, economic and cultural rights
Social, economic and cultural rights are a fundamental category of human rights that aim to ensure the well-being and fulfilment of the individual in society. Unlike civil and political rights, which primarily protect individuals against abusive action by the state, social, economic and cultural rights require positive action by the state to realise them. These rights cover essential aspects of human life such as work, housing, food, education and access to culture.
The right to work, for example, is not limited to protection against unjustified dismissal, but also implies that the State must create an environment conducive to job creation and the promotion of fair and favourable working conditions. Similarly, the right to housing goes beyond simply prohibiting arbitrary eviction; it requires the State to take measures to ensure the availability of affordable and adequate housing for all.
One of the most significant aspects of these rights is the right to education. To realise this right, it is not enough for the state to refrain from restricting access to education; it must actively organise and provide resources for education. This includes the provision of an accessible and quality education system, from primary education, which must often be compulsory and free, to secondary and higher education.
In addition, these rights also include the right to social security and assistance. This means that the State must put in place mechanisms to help those in need, whether through financial aid, health services or social housing programmes.
These rights reflect the belief that for full and equitable participation in society, individuals need more than just freedom from state interference; they also require active access to certain essential resources and services. Thus, social, economic and cultural rights represent a commitment by the State to play an active role in facilitating equitable access to the opportunities and resources needed to live a dignified and fulfilling life.
The three generations of fundamental rights and the stages in their development
The evolution of human rights and their various categories is a long and complex process that began in the 18th century. This period was marked by significant philosophical and political developments that laid the foundations for human rights as we know them today.
The rights of the first generation, focusing primarily on individual freedoms, were formulated in response to the abuses of the authoritarian and monarchical regimes of the time. Two historical documents illustrate this first generation of rights particularly well: the Declaration of the Rights of Man and of the Citizen of 1789 in France and the Virginia Declaration of Rights of 1776 in the United States. The Declaration of the Rights of Man and of the Citizen, adopted during the French Revolution, marked a decisive turning point in the conception of human rights. It established principles such as freedom of expression, freedom of religion, equality before the law and the sovereignty of the people. These rights were seen as universal and inalienable, an integral part of the human condition.
The Virginia Declaration of Rights, adopted a little earlier during the American Revolution, laid similar foundations. It emphasised rights such as freedom of speech, freedom of the press and the right to a fair trial. This declaration had a major influence on the drafting of the US Constitution and the Bill of Rights. These documents and the ideas they represent had a considerable impact on the subsequent development of human rights. They laid the foundations on which subsequent generations of rights - economic, social, cultural and others - were built. For example, the first generation of rights established the principle that certain freedoms and protections are essential to the dignity and development of the individual, a principle that continues to inform and guide human rights debates around the world.
What is expected of the State in terms of human rights is first and foremost respect for individual freedoms and the guarantee of citizens' active participation in the functioning of democracy and its institutions. This expectation is based on the idea that personal freedom and democratic participation are intrinsically linked and essential to a just and equitable society. Respect for individual freedoms means that the state must protect fundamental rights such as freedom of expression, freedom of religion, the right to privacy and the right to a fair trial. These freedoms are essential because they enable individuals to live without fear of oppression or unwarranted interference by the state in their private affairs. They are also fundamental to personal development and fulfilment. At the same time, the participation of individuals in the functioning of democracy is a crucial aspect of democratic governance. This means that citizens must have the opportunity to engage actively in political processes, whether through voting, participating in political parties, engaging in public debate or through other forms of civic activism. Such participation is essential to ensure that governments remain accountable and responsive to the needs and desires of their citizens. In addition, the state's respect for democratic institutions is fundamental. These institutions, such as parliaments, courts and electoral bodies, must function freely and fairly, without interference or manipulation. Their integrity and independence are crucial to maintaining public confidence in the democratic process.
The first generation of human rights, encompassing political freedoms and rights, effectively took shape in the eighteenth century, a period marked by major changes in the conception of the role of the state and the rights of citizens. During this period, human rights began to be understood as a means of granting citizens greater opportunities for choice, action and personal appreciation. The 18th century saw revolutions and important declarations that challenged the traditionally authoritarian role of the state. The Declaration of the Rights of Man and of the Citizen in France (1789) and the Virginia Declaration of Rights in the United States (1776) are prominent examples of this evolution. These documents emphasised rights such as freedom of expression, freedom of religion and the right to participate in political life, marking a turning point in the relationship between the state and the individual. In this context, the role of the state was seen primarily in a negative light, i.e. it was expected to refrain from interfering in the lives of individuals. Above all, it was expected not to interfere with personal freedom and to lift the prohibitions that limited individual fulfilment. The underlying idea was that for people to achieve their full potential, they had to enjoy a high degree of freedom from state intervention. This conception of human rights, which focused on limiting the power of the state and protecting individual freedom, laid the foundations for modern democracies. It also paved the way for the further development of human rights, including economic, social and cultural rights, which would require a more proactive approach on the part of the state to guarantee the equality and well-being of all citizens.
The second generation of human rights, focusing on social, economic and cultural rights, emerged in the late nineteenth and early twentieth centuries, marking a significant shift in the perception of the role of the state in guaranteeing human rights. This period witnessed profound changes due to the Industrial Revolution, social movements and the emergence of political and economic theories that challenged existing social and economic structures. Unlike first-generation rights, which focused on the protection of individual freedoms and primarily required the state to adopt an attitude of non-interference, second-generation rights require the state to intervene actively. These rights recognise that the mere absence of barriers is not enough to guarantee real equality, and that if all individuals are to benefit fully from the progress of society, the State must play a more direct and substantial role. This means that the state must not only protect but also facilitate access to essential services such as education, health and social welfare. For example, the organisation of public schools to ensure education for all, the establishment of public health systems to guarantee access to care, and the development of social assistance programmes to support those in need, are concrete manifestations of these rights.
The adoption of these rights was influenced by various ideologies and movements, including socialism and the labour movement, which highlighted the inequalities and injustices created by industrial capitalism. In response, many governments began to incorporate more progressive social and economic policies into their legislation. Thus, with the second generation of rights, the state is no longer simply a guardian of individual freedoms, but also becomes an active player in promoting the well-being and equality of its citizens. This development marks an important step in the recognition that human rights encompass not only freedom from oppression, but also the right to a decent standard of living and to social and cultural fulfilment.
The emergence of third-generation fundamental rights, often referred to as "solidarity rights", marks a new stage in the evolution of human rights after the Second World War. This generation of rights reflects a growing awareness of the global challenges and responsibilities shared by humanity. Solidarity rights include the right to peace, development, a healthy environment, the common heritage of mankind and information. Unlike first- and second-generation rights, which focus on individual freedoms and social, economic and cultural rights respectively, third-generation rights are characterised by their collective and transnational nature. They recognise that certain issues, such as environmental protection, sustainable development and world peace, transcend national borders and require international cooperation and action. Although these rights are still in their infancy and often considered to have less legal force than first- and second-generation rights, they are gradually gaining recognition and influence. For example, the right to a healthy environment has begun to be incorporated into certain constitutional texts and international treaties, reflecting a growing global awareness of the importance of environmental sustainability.
These third-generation rights, although in many cases still at the claim stage, underline the evolving understanding of human rights. They highlight the fact that global issues such as climate change, unequal development and world peace have a direct impact on the well-being and rights of individuals. By recognising these rights, the international community acknowledges that the challenges of the 21st century require solutions that go beyond national frameworks and imply collective responsibility and action. Thus, although they have not yet achieved the same legal status as first- and second-generation rights, third-generation rights are shaping the global discourse on human rights and are likely to find a more assertive place in positive law in the future.
The evolution of fundamental rights has followed a remarkable path from their initial development at national level to their recognition and institutionalisation at international and regional level. The genesis of these rights can be traced back to the mid-eighteenth century, a period marked by philosophical and political movements that challenged existing power structures and called for the recognition of the fundamental rights of the individual. This period saw the adoption of founding documents such as the Declaration of the Rights of Man and of the Citizen in France (1789) and the Declaration of Independence in the United States (1776), which established the principles of civil and political rights. However, it was in the mid-twentieth century, after the horrors of the Second World War, that recognition of human rights truly took on an international dimension. In response to the atrocities of war, the nations of the world came together to proclaim the Universal Declaration of Human Rights on 10 December 1948. This document, although not binding, established a moral and ethical framework for human rights and influenced many subsequent international treaties and national constitutions.
At European level, the European Convention on Human Rights, which was signed on 4 November 1950 and came into force in 1953, was a milestone. It not only codified a set of rights and freedoms, but also established the European Court of Human Rights to ensure that these rights were respected by Member States. The Convention has played a crucial role in the protection of human rights in Europe, providing a legal mechanism for their protection and enforcement. These developments illustrate a growing trend towards the recognition and protection of human rights beyond national borders, recognising that these rights are universal and inalienable. They also underline the crucial role of international and regional organisations in promoting and protecting human rights worldwide.
Annexes
- Déclaration de Virginie : étude de texte
- Déclaration universelle des droits de l'homme
- Convention européenne des Droits de l’Homme
- Texte intégral de la Déclaration universelle des droits de l’homme accompagné de quelques repères sur le site de l'ONU
- La page des droits de l'homme sur le site de l'ONU
- La déclaration universelle des droits de l'homme de 1948 sur le site du ministère français de la justice
- Présentation de la Déclaration universelle des Droits de l'Homme sur le Portail des droits de l'enfant