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for resisting arbitrary laws promulgated by states which infringe on their
basic human rights. However, 'it [takes] a system of positive law to provide
a definite and systematic statement of the actual rights which people [pos-
sess]' (Davidson, 1993: 29).
Aside from these three theories, contemporary scholars like John Rawls,
Alan Gewirth, Ronald Dworkin, Charles Taylor and others have also
advanced theories of rights with the objective of broadening the theoretical
and foundational discourse of human rights.
The Evolution of the Concept of Human Rights
The idea of rights as espoused in the modern concept of human rights
dates back to antiquity. For instance, in ancient Babylon, circa 1780 BCE,
Hammurabi's code recognised the need to protect human freedom and dig-
nity (Clapham, 2007); in ancient Greece, what distinguished a citizen from
a slave (either natural or artificial) was the former's ability to enjoy personal
liberties, while no such personal liberties were accorded to the latter. Since
the era of Plato and Aristotle, the discourse on rights has evolved around
politics, law and philosophy (Weinberg, 1996-1997). Other civilisations,
such as Inca, Aztec, Hindu and the First Nations of North America, also
demonstrated through written or oral codes of conduct the systems needed
to protect people's health, welfare and property rights (Flowers, 1999). In
Europe, a major attempt to protect individual rights occurred in Britain in
1215. The
Magna Charta Libertatum
(or simply 'Magna Carta') was passed to
limit the powers of the British monarchy and also to secure protection for
the noble class and other citizens of England against arbitrary rule from the
former (Ishay, 2004; Tremblay
et al.
, 2008). In a similar fashion, 'the Golden
Bull (
Aranybulla
)' of Hungary (1222), the Danish King Erik Klippings
Håndfaestning of 1282, the
Joyeuse Entrée
(Charter of Liberties) of 1356 in
Brabant (Brussels), the Union of Utrecht of 1579 (the Netherlands), the
English Bill of Rights of 1689 (van Banning
et al.
, 2004: 15), the 1776
American Declaration of Independence, and the 1789 French Declaration of
the Rights of Man and of the Citizen (van Banning
et al.
, 2004) were also
domestic attempts to secure protection for the rights and liberties of citizens
in the aforementioned European and American nations.
However, historically, human rights protection was meant for a group of
people who could make rational judgements (i.e. free male citizens) (Clapham,
2007). Reflecting the social background of the time, women, children, slaves,
heathens, barbarians, colonised people, indigenous populations, the impov-
erished and the insane were not even considered 'bearers of human rights'
(Muchlinski, 2001). In 18th- and 19th-century Europe, Olympe de Gouge's
(1791) 'Declaration of the Rights of Women' and Mary Wollstonecraft's
(1792) 'Vindication of the Rights of Woman' challenged the principles of
equality, but fell on deaf ears. John Stuart Mills' suggestion to replace the
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