Categories and generations of fundamental rights

De Baripedia

Based on a course by Victor Monnier[1][2][3]

Fundamental rights, formerly referred to as "natural rights" in the 18th century, have evolved significantly over time. Historically, these rights were considered to be inherent to human existence, universal and inalienable. Philosophers such as John Locke and Jean-Jacques Rousseau contributed greatly to the conceptualisation of these rights. Locke, for example, in his work "Two Treatises on Government" published in 1689, defended the idea of natural rights such as life, liberty and property, while Rousseau, in "The Social Contract" of 1762, emphasised the importance of the general will and the sovereignty of the people.

At that time, natural rights were seen as universal moral principles, not dependent on legislation or recognition by the state. However, with the French Revolution and the American Declaration of Independence, these rights began to be formalised in legal documents. The 1789 Declaration of the Rights of Man and of the Citizen in France marked a major turning point, affirming rights such as freedom of expression, freedom of religion and equality before the law.

Over time, the understanding and application of human rights has evolved from a philosophical perspective to a practical and legally binding application. This transition has materialised in the gradual incorporation of fundamental rights into national constitutions and legislation. For example, the Federal Constitution of the Swiss Confederation, which recognises and protects a range of fundamental rights, illustrates the importance attached to these rights in the modern legal framework. It guarantees not only traditional civil and political liberties, but also economic, social and cultural rights, reflecting the broadening of the concept of human rights beyond its original conception.

The role of States in recognising and protecting fundamental rights has become crucial. The incorporation of these rights into national legislation has made it possible to create legal mechanisms to guarantee their application and respect. As a result, fundamental rights, although rooted in universal and inalienable principles, are now mainly defined and protected by the legal framework of each State. This development reflects the way in which societies have institutionalised these philosophical concepts, recognising their fundamental importance in protecting and respecting the individual.

The four categories[modifier | modifier le wikicode]

Freedoms[modifier | modifier le wikicode]

Freedoms, in the context of fundamental rights, play an essential role in protecting and promoting various aspects of individual existence. They concern a wide range of behaviour and activities, offering each person the latitude to realise his or her aspirations, choices and activities in various areas of life.

These freedoms encompass both physical and mental dimensions. For example, freedom of movement, a fundamental right, allows individuals to move freely within their country and to travel abroad. This freedom is crucial not only for personal activities but also for professional reasons, as in the case of traders or entrepreneurs who need to move to develop their business. In psychological terms, these freedoms include rights such as freedom of expression and freedom of thought, conscience and religion. These freedoms enable individuals to express their opinions, practise their religion or follow their beliefs without fear of censorship or repression. Freedom of expression, for example, is fundamental to a democratic society, as it supports public debate, criticism of government and the exchange of ideas. In addition, individual freedoms include the right to privacy, protecting the personal and family aspects of a person's life from unwanted intrusions. This freedom is increasingly relevant in the digital age, where the protection of personal data has become a major concern.

Fundamental freedoms are essential for personal development and autonomy. They enable individuals to pursue their goals, express their individuality and participate fully in society. These rights are protected by various international legal instruments, such as the Universal Declaration of Human Rights, as well as by national constitutions and laws. Protecting and promoting these freedoms is vital to maintaining an open, dynamic society that respects the rights of every individual.

The political rights[modifier | modifier le wikicode]

Political rights, which are essential to the functioning of democracy, give citizens the ability to participate actively in the management of public affairs. These rights, anchored in the legal system, reflect the ability of citizens to influence the political direction of their society.

The right to vote is at the heart of these prerogatives. It offers individuals a direct means of expressing their opinions on how they are governed, whether through elections or referendums. The history of the right to vote is littered with significant struggles for inclusion. For example, the suffragette movement, which gained momentum in the early twentieth century, was instrumental in extending the right to vote to women, a major milestone in many countries such as the United Kingdom with the 1918 Act and the United States with the 19th Amendment in 1920.

At the same time, the right to elect, which allows citizens to choose their representatives, is a pillar of representative democracy. This right ensures that governments reflect the diversity and preferences of society. It also allows for the fair representation of different opinions and interests, thus ensuring more inclusive and democratic governance.

The right to be elected is equally crucial. It guarantees that any individual, subject to meeting certain criteria, can stand as a candidate in an electoral process. This provision fosters an open and dynamic political system, allowing people from diverse backgrounds to contribute to governance. The opportunity for individuals from different backgrounds to stand for election enriches political debate and encourages the inclusion of diverse perspectives.

These rights collectively form the bedrock of civic participation in modern democracies. Their protection and promotion are essential to ensure the legitimacy of governments and encourage active civic engagement. They are the guarantee of a society in which political power is not only accessible, but also responsive to the needs and aspirations of the entire population.

Guarantees of the rule of law[modifier | modifier le wikicode]

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[modifier | modifier le wikicode]

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[modifier | modifier le wikicode]

Declaration of the Rights of Man and of the Citizen, Le Barbier, 1789, oil on canvas, 71 x 56 cm, Paris, Musée Carnavalet. The Monarchy, holding the broken chains of Tyranny, and the genius of the Nation, holding the sceptre of Power, surround the declaration.

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[modifier | modifier le wikicode]

References[modifier | modifier le wikicode]