Civil rights

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Civil rights are the protections and privileges of personal power and rights given to all citizens by law. Civil rights are distinguished from "human rights" or "natural rights," also sometimes called "our God-given rights." Civil Rights are rights that are bestowed by nations on those within their territorial boundaries, while natural or human rights are rights that many scholars claim that individuals have by nature of being born. For example, the philosopher John Locke (1632–1704) argued that the natural rights of life, liberty and property should be converted into civil rights and protected by the sovereign state as an aspect of the social contract. Others have argued that people acquire rights as an inalienable gift from the deity or at a time of nature before governments were formed.

Contents

Laws guaranteeing civil rights may be written down, derived from custom or implied. In the United States and most continental European countries, civil rights laws are most often written. Examples of civil rights and liberties include the right to get redress if injured by another, the right to privacy, the right of peaceful protest, the right to a fair investigation and trial if suspected of a crime, and more generally-based constitutional rights such as the right to vote, the right to personal freedom, the right to freedom of movement and the right of equal protection. As civilizations emerged and became formalized through written constitutions, some of the more important civil rights were granted to citizens. When those grants were later found inadequate, civil rights movements emerged as the vehicle for claiming more equal protection for all citizens and advocating new laws to restrict the effect of current discriminations.

Theoretical background: The concept of right

American jurist Wesley Newcomb Hohfeld (1879–1918) maintained that analysis of legal issues is frequently muddled and inconsistent because the legal concepts are improperly understood. The first question, therefore, is to understand what the rights are in "civil rights." There are two major schools of thought:

  • Hohfeld proposed a structured system of interrelated concepts
  • American philosophers Robert Nozick and John Rawls approached the concept of rights from the (differing) perspectives of libertarianism and social welfare-Kantian-social contract theory and belief.

Hohfeld's concept of right

Hohfeld distinguished right from liberty, and power from immunity—concepts that are often used interchangeably in non-technical discourse, but are philosophically different. By examining the relationships between these concepts, he hoped to explain the legal interests that have evolved in the real world of civil society and to answer the question whether citizens of a state have any right to access any of the possible forms of social security.

Right and duty are correlative concepts, i.e. one must always be matched by the other. If A claims a right against B, this is meaningless unless B has a duty to honor A's right. If B has no duty, that means that B has liberty, i.e. B can do whatever he or she pleases because B has no duty to refrain from doing it, and A has no right to prohibit B from doing so. An individual would be considered to have perfect liberty if no one has a right to prevent the given act.

Power means the capacity to create legal relationships and to create rights and liabilities. The correlative of power is liability. If A has power over B, B must have liability towards A. For example, properly constituted courts have the power to pass judgments that impose liabilities but, if the defendants are outside the courts' jurisdiction, the judgments are unenforceable. Similarly, a legislature has power to make laws, but those laws that attempt to restrict a fundamental right may be unconstitutional. If the laws are valid, they create a disability; the legal opposite of disability is power. So, children or people suffering from a mental disability should be protected from liability and their power to make a binding contract is removed. A person loses the right to sue another to recover a debt if the period of limitation has expired.

The legal opposite of liability is immunity. In some countries, government departments exercising sovereign powers cannot be sued in tort and the President or the Prime Minister cannot be personally liable in respect of any contract made or assurance given for the purposes of the state. These are examples of immunities.

Although the word right is often used to describe liberty, power, or immunity, Hohfeld clearly distinguished them. Indeed, Hohfeld described liberty as an a priori condition of the rule of law, coming into existence long before any Bill of Rights and offering an individual power to the extent that it is not restricted by any law. Essentially, Hohfeld believed that anyone who tries to have encroach on the liberty of a citizen must be required to demonstrate their clear right to do so. After more than eighty years of consideration, some doubt whether this set of conceptual relationships is philosophically sustainable. But, the core juxtaposition of right, duty and liberty remains a seductive argument.

Political theories of a just state: Rawls and Nozick

Just society according to John Rawls

John Rawls (1921–2002) developed a model of a different form of just society which relied on:

  • The "liberty principle" which holds that citizens require minimal civil and legal rights to protect themselves
  • The "difference principle" which states that every citizen would want to live in a society where improving the condition of the poorest becomes the first priority.

For Rawls, a right is an "entitlement or justified claim on others" which comprises both negative and positive obligations, i.e. both that others must not harm anyone (negative obligation), and surrender a proportion of their earnings through taxation for the benefit of low-income earners (positive). This blurs the relationship between rights and duties as proposed by Hohfeld. For example if a citizen had the right to free medical care, then others (through the agency of the government) would be obligated to provide that service.

Critics of Rawls' approach doubt whether the difference principle is congruous with a state consistently applying the capitalist model. Rawls' ideas however have influenced the implementation of social market economies within a capitalist system in European countries like Germany.

Robert Nozick's minimal state

Robert Nozick (1938–2002) offered a model of a minimal state, described as libertarianism. Nozick argued that no state is ever justified in offering anything more than the most minimal of state functions, and further, that whatever might exist by way of rights exists only in the negative sense of those actions not yet prohibited. He denied the possibility that any citizen can have rights that require others to offer him or her services at the state's expense, and tested whether exchanges between individuals were legitimate by an entitlement theory:

  • The "acquisition principle" states that people are entitled to retain all holdings acquired in a just way
  • The "rectification principle" requires that any violation of the first two principles be repaired by returning holdings to their rightful owners as a "one time" redistribution (a reference to the Rawlsian Difference Principle).

Nozick, therefore, believed that there are no positive civil rights, only rights to property and the right of autonomy. For him, a just society does as much as possible to protect everyone's independence and freedom to take any action for the benefit of one's self. This is an important teleological protection: the Jeffersonian political philosophy right to the pursuit of happiness is the freedom to engage in any actions so long as they do not infringe upon that same right exercised by others.

Critics of the minimal state-model argue that a state which provides no services to citizens is inadequate because, in their view, one of the purposes of a state is to aid citizens in achieving goods and services that citizens are unable to get on their own, unaided.

The difference between Rawls and Nozick is that Rawls thought that a state should always provide the basic fundamentals of physical existence, whereas Nozick gave no guarantee save that an individual always had the freedom to pursue wealth and happiness, so long as he does so according to the principles of the entitlement theory.

Implied rights

"Implied" rights are rights that a court may find to exist even though not expressly guaranteed by written law or custom, on the theory that a written or customary right must necessarily include the implied right. One famous (and controversial) example of a right implied from the United States Constitution is the "right to privacy," which the United States Supreme Court found to exist in the 1965 case of Griswold v. Connecticut. In the 1973 case of Roe v. Wade, the court found that state legislation prohibiting or limiting abortion violated this right to privacy. As a rule, state governments can expand civil rights beyond the United States Constitution, but they cannot diminish Constitutional rights.

Negative and Positive Rights

An important distinction exists between rights that are known as negative rights and rights known as positive rights. Negative rights are rights to such things as freedom of speech, press, petition, assembly, political participation, religion, and non-discrimination in housing, jobs and employment, education and admission to desirable schools, and so on. Understood negatively, such rights mean that government or other authorities are prohibited from interfering in the person's exercise of those rights. The government or state, however, does not need to do anything to aid the holder in exercising those rights. One's right to freedom of religion, understood negatively, for example, does not require the government to provide one with what is needed to practice his/her religion—such as a prayer shawl or copy of your religion's sacred scriptures, if your religion should require those and you are unable to afford them yourself.

Positive rights are rights that require some entity—especially the government—to provide you with something if you cannot provide it for yourself. Thus, some European countries, for example, have a notion of positive rights written into their constitutions, so that if you are destitute, the government has to provide you with sustenance. This could include housing, perhaps a job, medical care, food, possibly transportation, and other amenities of life. The granting of negative rights does not require the expenditure of much if any public money. Granting positive rights, however, is usually quite expensive because these rights do require expenditure of public money if they are given.

Civil rights in the United States have usually been understood negatively, as meaning that the government should cease withholding freedoms and rights from persons and should not discriminate against people on the basis of race, sex, national origin, religion, and so on, and that it should put laws and a governmental attitude in place that forbids such forms of unjust discriminatory action. But, after its first phase in which the emphasis was in gaining rights that had been withheld from certain groups in the past—that is, gaining rights understood as negative rights—the American Civil Rights movement did have a second phase, in which some people argued that, because black and other minority people had been unjustly discriminated against in the past, this is the reason that they are disadvantaged and poor on the present, and therefore that a proper understanding of civil rights requires adoption of a positive program to compensate for past lack of rights by providing some form of reparations (almost always understood as financial payments of some kind), as well as preferential treatment, to present black people and other oppressed minorities because of their historical mistreatment and resulting poverty.

This attempt at gaining reparations has so far failed, and there are numerous arguments that have been given against it. One is that no person living today either gave or received that past mistreatment, thus it is and would be wrong to treat present day people as if they were such past people. Another is that such programs of preferential treatment, especially preferential treatment on the basis of race, are themselves racially discriminatory, and thus objectionable. As United States Supreme Court Chief Justice John Roberts wrote in a U.S. Supreme Court opinion in 2007, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." A third argument against it is that instituting such a program would lead to an enormous increase in racial hatred, public disorder, and rancor.

Civil Rights Movements

Lyndon B. Johnson meets with civil rights leaders Martin Luther King, Jr., Whitney Young, James Farmer

Efforts to gain civil rights are at least as old as the Exodus of the Bible, when the Israelite people we enslaved in Egypt and wished to receive their freedom. The slogan of that time, "Let my people go," as given in Exodus, has been repeated invoked in human history and especially in the black civil rights movement in the United States in the 1950s and 1960s.

The ancient Greek philosophers, Plato and especially Aristotle, were concerned with civil rights—what those rights are and how they might be obtained.

Civil rights have almost always been granted or achieved only when there is an interest or force in opposition to the central power or authority or state. This means that there exists a group of people with power that can demand civil rights and has sufficient ability to compel the government to honor those demands. In light of that, the Protestant Reformation was, arguably, the most important event in human history with respect to humans becoming able to achieve civil rights. Whether or not Luther's 95 theses were ever actually posted on the church door at Wittenberg, they were widely printed and circulated. Luther's work claimed that the individual human's conscience and his/her interaction with scripture, faith, and grace are what count in achieving salvation. It was not the Church, not priests, not civil authorities who could bring about this salvation. So—by implication if not directly—Luther's work asserted the essential and necessary rights of freedom of conscience and freedom of worship and freedom of reading, study, and writing. State and Church power and authority, thus, had and has to take second place to human rights, and it was, by tacit implication of Luther's work if not directly stated, the responsibility of governments to grant those civil rights to all people.

Luther, fortunately, had a protector in Prince Frederick III, Elector of Saxony, who arranged to have him kidnapped and held incognito in Wartburg Castle at Eisenach, following the Edict of Worms that was issued on May 25, 1521. That edict declared Luther a heretic, banned his writings, and permitted anyone to kill him without legal consequences. All those things are, today, held to be violations of civil rights. But the political, cultural, and religious situation of Luther's day supported them. Luther's work, then, and the power that came to support it, can and should be seen as pivotal in breaking up that unholy alliance of political, civil, and religious power, and making it possible for the rise and granting of civil rights.

It is largely true that civil rights have usually been most easily achieved in countries where there has existed a strong Protestant Christian base. The English speaking world had a series of events that were crucial to gaining civil rights. This included, among others, the granting of the Magna Carta, Henry VIII's break with the Roman Church, the philosophy of John Locke and its attack on monarchism, the founding of America, and the American Declaration of Independence and the United States Constitution.

In France, the exile of the pope at Avignon in the fourteenth century, and the French Revolution in the eighteenth century, can be understood as having brought about a certain measure of civil rights to the French people because these events weakened the Roman Catholic Church and its hold on civil authority, but the excesses of the French Revolution and the resulting Thermidor can be seen as a backward steps. Nevertheless the seeds for civil rights had been sown, and France and its people, although they remained Roman Catholic and not Protestant, would never again be wholly under the domination of a repressive government or repressive Church.

The situation in Spain and Portugal was different. They never had a Protestant Reformation or an equivalent to the French Revolution. Thus a strong monarchy and Roman Catholic Church remained dominant, especially in Spain, and the people there were for the most part prevented or forbidden from reading the Bible on their own, much less the works of Luther and other Reformers. Some people have claimed that civil rights have never really existed in any strong way in Spain and Latin America. The work and results of the Mothers of the Plaza de Mayo in Argentina, and the movement for civil rights in Chile following the demise of the Pinochet regime would seem to be counterexamples to that claim.

There is to this day very little of civil rights in Arab or Muslim countries, much of Africa, China (the Tinanamen Square movement of 1989 was crushed militarily, and subsequently no strong movement for civil rights has emerged), or most other countries of the Orient. Some exceptions would be Japan and South Korea, but movements for civil rights in those countries came as an aftermath of World War II and the Korean War and the Westernization that has come about since then. South Korea was, with brief interludes otherwise, under martial law from the end of World War II until about 1987, although there were several student and other internal uprisings during that time that could be thought of as efforts to achieve some civil rights. Except for England, Holland, and a few other cases, countries with monarchies or other hierarchical systems do not usually have many civil rights or much tolerance for civil rights movements or efforts. (But England and Holland today are really liberal democracies, even though they still have monarchs.) Countries or religions or ideologies with caste systems, such as India and Hinduism, thereby offend enormously against civil and human rights.

Some other historical civil rights movements have included the effort in India, led by Gandhi, to free India from British rule and domination, the effort in Africa for political freedom from colonialism, and the effort in South Africa to overcome Apartheid and the Apartheid regime. In each of those cases, however, the powers that were withholding civil rights were mostly Protestant ones (or, in the case of France, adherents of the doctrine of the rights of man), so those agitating and calling for civil rights could accuse those powers of going against their own central doctrines and thus of needing to grant civil rights in order not to be inconsistent.

The same was true of the civil rights movement in the United States in the 1950s and 1960s. Martin Luther King, Jr., (a disciple of Gandhi) and those who struggled with him for civil rights for black Americans, could point to two ways in which America, with its Jim Crow laws, was going against its central beliefs and legal traditions: it was not treating all people as equally children of God with individual liberties (central points of Protestant Christianity) and it was going against the claim in the Declaration of Independence that all humans are created equal and that the laws should apply equally to all people without regard to race. In addition to those philosophical and religious arguments, the civil rights movement—because of political organization, agitation, marches, arrests, beatings, attacks by fire hoses and dogs, sit-ins, etc., all visible on television to all America and the world—was able to gain enough power to compel governmental action in favor of its demands for civil rights.

Today, there are numerous civil rights efforts and movements that attempt to follow the patterns laid down by Gandhi, M. L. King, Jr., and others. In particular there is a homosexual rights (gay rights) movement in America today that argues that, just as it was wrong to withhold civil rights and to practice legal discrimination based on race, it is wrong to withhold civil rights and to practice legal discrimination based on sexuality, and just as it was wrong to legally forbid marriage between consenting people of different races, so it is wrong to legally forbid marriage between consenting people of the same sex. The flaw in that argument—an argument from analogy—however, is that race and sexuality may not be the same, thus what applies as a human right, resulting in a demand for civil rights, in one case (discrimination on the basis of race is ethically wrong), does not necessarily apply in the other (that a discrimination on the basis of sexuality may not necessarily be ethically wrong, while most monotheistic religions have taught that homosexuality is objectionable).

Other present day movements that seek civil rights include, among others, abortion rights movements, movements to ban female genital mutilation, other women's rights movements, men's rights movements, children's rights movements, and animal rights movements. The animal rights movement is based on the view that it is ethically wrong to prefer one species (humans) over another because some other species, besides humans, feel pain and emotions, are sentient, and have intelligence. So far, the animal rights movements have been mostly academic and have (usually) not succeeded in having their concerns put into law. But the homosexual rights movement is very strong and has succeeded in having its concerns, especially a right to homosexual marriage, put into law in many places both in America and elsewhere in the world. The homosexual rights movement has met strong resistance from many adherents of Christianity, Judaism, and Islam on the grounds of the belief of those religions that homosexuality is against the will or decree of God, and sometimes based on a claim that homosexuality is unnatural. Movements for abortion rights and contraception rights have been strongly resisted by Roman Catholic entities for the same reasons.

United States Law and Practice

Civil rights can in one sense refer to the equal treatment of all citizens irrespective of race, sex, or other class, or it can refer to laws which invoke claims of positive liberty. An example of the former would be the decision in Brown v. Board of Education 347 U.S. 483 (1954) that was concerned with the constitutionality of laws which imposed segregation in the education systems of some U.S states. The United States Congress subsequently addressed the issue through the Civil Rights Act of 1964 Sec. 201. which states: (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. This legislation and the Americans with Disabilities Act of 1990 have constitutional stature as enumerations of civil rights guaranteed by the Fourteenth Amendment to the United States Constitution. Although the Fourteenth Amendment to the United States Constitution is often thought of as the civil rights amendment, all constitutional protections are considered within the United States as civil rights. "Thomas Jefferson wrote "a free people [claim] their rights as derived from the laws of nature, and not as the gift of their chief magistrate."[1]

The United States Constitution recognizes different civil rights than do most other national constitutions. Two examples of civil rights found in the US but rarely (if ever) elsewhere are the right to bear arms (Second Amendment to the United States Constitution) and the right to a jury trial (Sixth Amendment to the United States Constitution). Few nations, not even the United Nations have yet to recognize either of these civil rights. Many nations hold that it is an individual's civil right to not be executed for crimes, a civil right not recognized within the United States.

See also

The following agencies, people, and political movements have been significant in the movement toward increasing civil rights in various places in the world.

Agencies

  • U.S. Commission on Civil Rights

People

  • Martin Luther King Jr.
  • Cesar Chavez
  • Rosa Parks
  • Ella Baker
  • Morris Dees
  • Gerry Fitt
  • John Hume
  • Northern Ireland Civil Rights Association
  • Ronald Dworkin
  • Fannie Lou Hamer
  • T.R.M. Howard
  • Winson Hudson
  • Corliss Lamont
  • Jo Ann Robinson
  • Southern Poverty Law Center
  • Omali Yeshitela

Politics

Related topics

  • Affirmative Action
  • Anti-Semitism
  • Civil liberties
  • Human rights
  • Teaching for social justice
  • Natural rights
  • Inalienable rights
  • Prisoners' rights
  • Second-class citizen
  • Apartheid
  • Feminism
  • Gay rights
  • Women's rights
  • Men's rights
  • Minority rights
  • Bloody Sunday - 1972, Northern Ireland
  • Union Organizer
  • Executive Order Number 11478

Notes

  1. Thomas Jefferson: Rights of British America, 1774. ME 1:209, Papers 1:134. Inalienable Rights, Eyler Robert Coates, Sr. Retrieved October 23, 2007.

References

  • Arendt, Hannah, The Origins of Totalitarianism, New Edition, New York: Harcourt Brace Jovanovich, 1973. ISBN 0156701537
  • Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. by W.W. Cook, 1919, edited by David Campbell and Philip Thomas with an introduction by Nigel E. Simmonds, London: Ashgate, 2001. ISBN 185521668X
  • Nozick, Robert, Anarchy, State, and Utopia, Reprint of 1975 ed., with new foreword, New York: Basic Books/Perseus Pub. Group, 2006. ISBN 0465051006
  • Rawls, John, A Theory of Justice, Revised edition, Cambridge, MA: Belknap Press of Harvard University, 1999. ISBN 0-674-00077-3
  • Smith, Jean Edward & Herbert M. Levine, Civil Liberties & Civil Rights Debated, Englewood Cliffs, New Jersey: Prentice Hall, 1988. ISBN 013134966X ISBN 978-0131349667

External links

All links retrieved May 23, 2013.

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