Civil rights
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Civil rights are those rights developed by citizens over time and sometimes protected by governments. Examples of 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 life, the right to freedom of movement and anti-discrimination laws. As civilisations emerged and formalised 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 limit the effect of current discriminations.
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) which was concerned with the constitutionality of laws which imposed segregation in the education systems of some U.S states. The theories set out below explain why such laws should not be considered legitimate, but do not explain why the case failed to declare the general principle that all manifestations of segregation were a breach of civil rights (that would be more properly a question of politics). The U.S. legislature 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. Some other countries have enacted similar legislation, or have given direct effect to supranational agrements such as the European Convention on Human Rights (with forty-five countries as signatories), which encompass both human rights and civil liberties.
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Related Terminology
The term 'civil rights' is often used synonymously with civil liberties, even though theoretical jurisprudence distinguishes between right and liberty (see below: Hohfeld). The root of the word 'civil' reflects the association between a bundle of rights and 'citizenship'. The term Human rights refers to a broader concept.
In the early legal systems of Ancient Rome, plebeians and women had no right to vote whether as a juror or for political purposes, and ownership of property was an aspect of patria potestas, i.e. only the father of the family could own property, his wife, relatives and children having no right of ownership. Similarly, the mediaeval European city-states limited access to the status of citizenship and the civil rights associated with it. This practice of dividing societies by reference to class or caste associates privilege with the upper layers of society and means that civil rights attach to people by virute of their citizenship of a state.
Today, in most western societies, it is taken for granted that every person has a number of rights and freedoms, which are valued deeply and are closely associated to the modern concept of democracy. Civil rights are claimed to be the pillars of modern societies. Nevertheless, it is domicile that attaches to an individual at birth, regardless of such factors as race, gender or class, and determines status and capacity. As each individual moves from state to state, the extent of the civil rights to be enjoyed will be determined by the interaction between the domicile of origin, and the cultures and laws of those states in which that person resides as a citizen.
The term human rights is not limited to citizenship of one state and reflects the concept of fundamental rights that all human beings can claim. Whereas 'civil rights', 'civil liberties' and 'constitutional rights' are used to denote expectations as to behaviour and treatment by fellow citizens in any one sovereign state, 'human rights' is more often used in the context of international law, the supranational systems of law that may or may not have direct effect in sovereign states depending on the treaties signed by each state and the nature of their legal systems. Human rights include civil rights. The term may also refer to the rights of refugees and the problems of statelessness; however, the debate on the extent of fundamental human rights is much broader. Jurist Karel Vasak, for example, discusses a right to peace and the right to a clean environment as fundamental human rights.
Theoretical Background: The concept of right
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
- Nozick and Rawls approached the concept of rights from the perspectives of libertarian and political theory.
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 corelative 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 honour 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 corelative 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 judgements that impose liabilities but, if the defendants are outside the courts' jurisdiction, the judgements 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 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.
Libertarian and political theory: Nozick and Rawls
Minimal state
Robert Nozick (1938-2003) 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 "transfer principle" holds that goods or services "freely acquired from others who acquired them in a just way are justly acquired"
- 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 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.
Just Society
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 Rawl's approach doubt whether the difference principle is congruous with a state consistently applying the capitalist model. Rawl's ideas however have influenced the implementation of social market economies within a capitalist system in European countries like Germany.
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 his or her own ends.
Concepts applied: an Example
The rights that evolve through history will be the product of the culture in the given state and they will exist independently of the legal system. The extent to which the state decides to give any of these rights some legal enforcement will be determined by the balance struck between the competing interests within the society. As an example, let us take a proposal to make it illegal to treat people differently on the basis of race. This fits into the context of a general freedom of association and has relevance to freedom of thought. So, one view would be that employment is a personal contract and, because employer and employee must work together well if the business is to prosper, the employer should be free to employ whoever he or she wishes. Similarly, so long as a person keeps his thoughts to him or herself, no change should be necessary. What philosophical justifications would there be for imposing duties and liabilities to modify behaviour and correct thought?
- In Nozeck's model, there would be no justification. Every citizen is free to offer employment and/or to offer their labour, and any interference with these freedoms would diminish autonomy. In capitalist countries, this philosophy resonates powerfully with citizens who oppose any restriction on their right to use their justly acquired wealth for their own benefit.
- For Rawls, the Liberty Principle means that no one person should be any less "equal" than any other. Therefore, it would be appropiate to restrict liberty and impose duties to promote social justice. This model works best in countries where the principle of wealth distribution is accepted by the majority. Hence, particular notions of what may constitute fairness or justice will always drive public calls for coercive anti-discrimination laws to fill in the gap where the naming and shaming of "offenders" is not an effective deterrent.
- Hohfeld's analysis would be apolitical. Unlike Nozeck and Rawls, the method does not depend on particular political assumptions, but applies rigor to identify the issues of principle. Hence, Hohfeld would begin with an unregulated society in which the employer has a power but no duty to offer employment to all citizens. This is enshrined in the fundamental principle, freedom of contract, which requires that every contract be a consensual bargain. If the codified practice of employers is not to offer employment to a class of citizens, this denial of opportunity is the equivalent of a disability and, as such, a state could act to remove the de facto immunity protecting the employers from appropriate legal redress. What form would this redress take? It cannot be the grant of an absolute right to employment in every citizen of the affected class. There may be many employers in the society but not every one of them may require additional employees. So the earliest time that a corelative duty to offer employment could attach to an employer is when a vacancy arises. But this is only one vacancy and there may be many seeking it. Which among those offering their labour has the best right to the one job? In the reality of this theoretical society, this has to be a decision made by the employer since only the employer has the power to create the contract (i.e. to define the terms and conditions of the work to be done and the wage or salary to be paid). So the only right that the state can give members of the affected class is the right to be judged fairly as against other job applicants and, if successful, to be offered the same terms and conditions applied to those already employed. Anything more than that would be to give job seekers rights and powers that no other part of the law of contract allows ? a clearly unjustified outcome since this would be encroaching on the standard package of rights and liberties enjoyed by all citizens in all the other areas of commercial activity within the state. So, a balance is struck. The need for general certainty in the operation of the law outweighs the benefit from introducing a limited exception for the benefit of one group. Yet, a way is found within the law as it stands, for some relief to be given to a disadvantaged class. It is a compromise struck in expediency, but which achieves the desired outcome.
Civil rights movement
Historically, the process of moving toward equality under the law was long and tenuous. But after a status had been reached where every citizen has the same rights by law, practical issues of discrimination remain. Even if every person is treated equally by the state, there may not be equality because of discrimination within society, such as in the workplace, which may hinder civil liberties in everyday life. During the second half of the 20th century Western societies have therefore introduced legislation that tries to remove discrimination on the basis of race, gender or disability.
Civil Rights Movement in the United States
Main article: American Civil Rights Movement
Civil rights campaigns in the U.S. have been dominated by racial politics. Although slavery was abolished and freed slaves were given the right to vote in 1865, southern states used laws and vigilantism to maintain black Americans as a non-voting lower class of citizen subject to repressive rules of conduct. The federal government, while aware of the situation, had limited jurisdiction over these matters and feared the political effects of provoking the South. A breakthrough came when president Harry S. Truman integrated the armed forces by executive order in 1948. This action prompted a broad movement throughout the 1950s, 1960s, and 1970s to secure and enforce the civil rights of all black Americans.
Other legal and political issues in the United States are often described as pertaining to the protection of civil rights, such as interpretations of the Bill of Rights (regarding, for example, freedom of speech and gun politics), labor laws, business regulations, property rights and eminent domain, and the questions of abortion and same sex marriage. Social discrimination is being reliefed by the protection of laborers from abuse by employers.
Also, since the terrorist attacks in New York City issues other than racial, sexual or social discrimination move into the center of attention. The controversial Patriot Act has served as a spearhead for this issue wherein citizen's right to privacy is restricted for the safety of the nation.
Civil Rights Movement in Northern Ireland
In part inspired by the success of the US Civil Rights Movement, Northern Ireland saw the formation of the Campaign for Social Justice in Belfast in 1964, followed by the Northern Ireland Civil Rights Association (NICRA) in 1967. The largely Catholic membership demanded the repeal of the Special Powers Acts of 1922, 1933, and 1943, and an end to the discrimination by Unionists, including the gerrymandering of local electoral districts to ensure the victory of unionist candidates in areas with nationalist majorities (most blatantly in the city of Derry), the awarding of local authority housing and in employment. Tentative steps to address these issues by Prime Minister Terence O'Neill was met with vehement opposition from hardline Protestant politicans, most notably Ian Paisley. Frustration at the resistance to reform and the heavy-handed tactics of the RUC and the British Army, first caught on film on Duke Street in Derry on 5th October 1968, pushed many Catholics towards supporting the IRA. The British Government responded with a policy of internment without trial of suspected republicans which provoked a civil disobedience campaign. For more than three hundred people, the internment lasted several years. Subsequently, the European Court of Human Rights ruled that the interrogation techniques used by the British army on internees in 1971 amounted to "inhuman and degrading" treatment. In an attempt to break the escalating cycle of violence including Bloody Sunday in Derry, the British Government introduced direct rule from London in 1972, proroguing the Northern Ireland Parliament. But, following the ending of an IRA ceasefire in 1976, there was a resumption of the political violence that has long been a feature of life in Ireland. The Good Friday Agreement introduced power-sharing but the devolved assembly at Stormont has been suspended since October 2002 and the British Parliamentary Election in 2005 produced a polarised result, diminishing the power of the more moderate parties.
One of the leaders of the Civil Rights Movement was future Nobel Peace Prize winner John Hume, another, Austin Currie, a candidate for President of Ireland in 1990. Hume's co-Nobel Laureate, David Trimble, was leader of the Ulster Unionist Party in the 1990s and 2000s, and had campaigned against sharing power with Catholics in the 1970's. Although some progress has been made, there is a political vacuum in Northen Ireland, caused by the breakdown of the peace process and many of the issues in policing, housing, and employment first raised by the Campaign for Social Justice in 1964 have yet to be resolved. Joan Harbison, head of Northern Ireland's Equality Commission, noted in her Annual Report in 2000 that, "while this Report reveals that the overall composition of Catholics in the civil service, at 38%, continues to move closer to the figure for labour availability, major under-representation continues to exist within the most senior grades." At present, senior civil servants in Northern Ireland are required to hold a British passport, ruling out those who hold Irish citizenship. In the more recent Monitoring Report No. 14 A Profile of the Northern Ireland Workforce published by the Equality Commission for Northern Ireland in November, 2004, Roman Catholics comprise 42.7% of those of working age available for work. "Comparing only those sections of the fulltime workforce which were monitored in 1990, the overall Roman Catholic share has increased by 5.9 percentage points, from 34.9% in 1990 to 40.8% in 2003." (2004, at p9) But, despite the improvement in the overall pattern of employment, there are causes for concern. For example, in the Security Related Occupations, which include the Police Service, the Royal Irish Regiment, the Prison Service, etc. "The composition was 85.6% Protestant. 9.9% Roman Catholic, and 4.5% undetermined." (2004 at p27).
- See the debate of the Northern Ireland Assembly at http://www.niassembly.gov.uk/record/reports/000628.htm
- and the pdf of the Fair Employment Monitoring Report No 14 - A Profile of the Northern Ireland Workforce at http://www.equalityni.org/publications/recentpubdetails.cfm?id=2
- John Whyte: How much discrimination was there under the unionist regime, 1921–68? (http://cain.ulst.ac.uk/issues/discrimination/whyte.htm)
Apartheid
Main article: Apartheid
Liberal feminism
Main article: Liberal feminism
Whereas radical feminists believe that an improvement of the situation for women can only be achieved through a revolutionary change, liberal feminism suggests a more practical approach. Liberal feminists try to achieve equality for women through social reforms by changing institutions and law so as to accomodate gender equality. This approach proved successful. It was liberal feminism that initiated changes in European institutions and that brought about legislature against the discrimination of women. In some European countries (f. i. Austria) job adverts may not be worded in such a way so as to exclude female applicants. Public institutions often try to increase the number of females and encourage women to apply.
Feminist writers associated with this tradition are amongst others Mary Wollstonecraft, John Stuart Mill and second wave feminist Betty Friedan.
One major step in the civil rights of women was the movement for the right to vote for women in the early 20th century.
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References
- Hohfeld, W. N. Fundamental Legal Conceptions as Applied in Judicial Reasoning, ed. by W.W. Cook (1919); reprint, New Haven, CT: Yale University Press, 1964.
- Nozick, Robert. Anarchy, State, and Utopia, Basic Books. 1974.
- John Rawls, A Theory of Justice (Revised edition, Cambridge, Massachusetts: Belknap Press, 1999), ISBN 0-674-00077-3.