Theories of Civil Liberties, International

Comparing American perspectives on civil liberties with their international counterparts presents numerous problems. First, most American commentators understand civil liberties in terms of civil rights as identified in the American Bill of Rights. The relatively recent shift toward defining these issues as civil liberties reflects the influence of critiques of rights, many of which originate or are strongly grounded in international politics and law. Second, the idea of organizing a polity around a limited set of political or social liberties is largely an American construct. Internationally, civil liberties exist within the larger framework of international human rights, a conceptual system that powerfully shapes and informs the content of those liberties. Moreover, the theory of international human rights has largely absorbed a variety of theories about rights useful in understanding civil liberties. While these theories developed over the course of history, each contributing something to our understanding of civil liberties, they no longer stand as independent bases for political thought or action. Thus, in describing international theories on civil liberties, we are in some sense parsing the historic development of human rights of which American civil liberties are a significant part.

In identifying historically grounded theories of civil liberties, one might proceed through a careful study of the emergence of specific civil liberties. That would, however, limit the discussion of theoretical perspectives to those that already inhere within a specific set of identified civil liberties. This would also miss efforts to expand our definition of civil liberties to include liberties and rights recognized internationally. A better approach attempts to identify theories based upon a broader understanding that civil liberties reflect particular understandings of the relationship between the citizen and the state. Here, we can very briefly identify five significant approaches, each affecting civil liberties in particular ways. We start with an Aristotelian understanding of the human as a political animal, successively move through a Lockean libertarianism, Montesquian fraternite, Marxist materialism, and international interests and then end with the rights of peoples.

The Right to Govern: Aristotle and the Political Animal

Among the oldest understandings of civil liberties stands the idea that the citizen should exercise the right of self-governance. As articulated by thinkers such as Aristotle in Politics, this original understanding of Citizenship was extraordinarily limited: male property owners of the dominant ethnic group. It was not universalist in scope and was not strictly rights oriented, though some thinkers attempt to link it with modern human rights movements. Nonetheless, it moved beyond simple ideas of governance through force or power to rest upon an understanding of the state grounded in human nature (i.e., that ‘‘man is a political animal’’) and structured by reason. As defined by Aristotle, a proper citizen is one who may participate in giving judgment and holding office, a position predicated upon the assumption that the individual possesses or is given the capacities and skills necessary to exercise those tasks (Bk III).

Under this approach, the state will protect certain civil interests insofar as they advance the goals of effective government. Thus, rights in private property are not protected because of any intrinsic interest of the individual property owner, but rather because protecting private property facilitates social coexistence and contributes to the creation of citizens capable of exercising the skills of self-governance. Under this approach, civil liberties such as free speech, freedom of conscience, and freedom of travel would be emphasized for their character-building features consonant with the development of a politically responsible individual. The right of free speech, the right of public assembly, the right to vote and equality (limited to the privileged ‘‘citizen’’) would be protected as fundamentals necessary for self-governance.

The Libertarian Privilege: Locke and the American Revolution

A second approach to civil liberties, particularly identified with John Locke and the American Revolution, views government with suspicion and elevates attention on the individual. Specifically, Locke and the American Revolution reflect efforts to counterbalance the totalitarian state through an enhanced understanding of the individual as a rights holder as against the state. Instead of focusing upon the social utility of a claimed civil liberty, this approach seeks to protect those rights possessed by individuals simply because they are human (i.e., natural rights.) Thus, the American Declaration of Independence (1776) speaks of ‘‘all men’’ being created equal and ‘‘endowed with certain inalienable Rights [including] Life, Liberty and the pursuit of Happiness.’’

While this approach would protect some of the same civil rights as the Aristotelian, such as rights to private property, it is based upon an empowerment of the individual as against the state. Indeed, as argued in the Declaration of Independence, the state ‘‘derive [ed it’s] just powers from the consent of the governed,’’ whose rights predate and stand independent of the state.

In practice, this approach to civil liberties focuses on what Isaiah Berlin labeled the ‘‘negative’’ rights: protections of liberties such as due process of law, rights of counsel, and rights of equality and/or voting insofar as the right protects the interests of the individual.

L’Espirit: Rousseau and the French Revolution

Growing out of the same revolutionary ferment as that of the Americans, the French Revolution took a slightly different tack. While appreciative of the expanding liberties of the American Revolution, the French chose to focus not just on the individual, but upon the community. Liberte´, Egalite´, Fraternite´ reflects an approach to liberty grounded within the citizenry as social beings with individual and collective interests. Rather than simply viewing the individual in opposition to the state, Rousseau and other French thinkers urged the virtues of the collective wisdom (‘‘l’espirit’’) and authority of the people.

In some ways this represents a blending of the Aristotelian and Lockean approaches, balancing the Lockean focus on the individual with the Aristotelian concern with the political collective leavened with the belief in the affinity of the people. Thus, the French Declaration of the Rights of Man and the Citizen (1789) not only talks in terms of ‘‘the preservation of the natural and imprescribible rights of man,’’ but also highlights the sovereignty of the nation, the idea of law as ‘‘an expression of the general will’’ and the idea that citizens possess ‘‘rights and duties.’’

This latter perspective, of rights and duties, over the years took on significant meaning as a challenge to the perceived selfishness of rights talk that focused only upon the individual. It was adopted by the Organization of American States as the focus of the American Declaration of the Rights and Duties of Man (1948).

This approach would continue the emphasis upon the civil liberties of the individual. What would change would be the understanding on how those liberties may be limited by the collective interests of the people. For example, while the United States tends to support a relatively absolutist position on free speech, limiting any restrictions on free speech to those that arise out of a clear and present danger, most countries allow limitations based on threats to social order, including restrictions on types of speech like hate speech.

Dialectic Materialism: Marx and the Industrial Revolution

Marx and the industrial revolution represented the first major challenge to the three foregoing theories of civil liberties by radically altering the terms of the argument. Specifically, Marx challenged the idea that governance and the relationship between the state and the citizen is or could ever be separate domains. At the simplest level, Marxists ask the question of whether an individual who lacks adequate food, health care, or housing could ever be deemed to possess or exercise any meaningful liberties. The need for necessities would compel these individuals to withdraw from political engagement or make them subject to easy manipulation by those able to provide them with those necessities.

Taking the analysis a step further, the lack of necessities and the subjection of the individual to the economic demands of capitalism not only disempowers, but also weakens the character of the common citizen identified as the working class. Following the Aristotelian approach, Marxism predicts that the political system will ultimately fail in molding individuals for the successful maintenance of the polity.

This Marxist challenge has forced the United States to grapple with the nature of the relationship between the individual and the state and the extent of state obligations to the individual. Specifically, if the task of civil liberties is to protect the individual in the role as citizen participating in the self-governance of the state, then to what extent does the state have an obligation to address the economic rights of the individual? Some economic rights fit relatively easily within traditional Lockean understandings of civil liberties. The rights of workers to organize share libertarian and Aristotelian characteristics (i.e., supporting the negative rights of the individual to be left alone to manage his or her life along with the positive character enforcement of the individual seeking to organize as a way of asserting control over economics). Affirmative rights (what Berlin refers to as positive rights) to an adequate job and income are more difficult to fit within traditional understandings.

How is the state to address these affirmative rights or liberties? Affirmative rights require the state to act—to expend public resources for the benefit of individuals. Are these expenditures obligatory or are they political? That is, are they to be compelled by the individual (in the nature of an individual right) or are they simply the subject of political process, answering the demands of the majority? If so, how?

International Human Rights: The World War II Revolution

Throughout history, the relationship between a state and its citizens (including the issue of civil liberties) was exclusively a domestic concern. The horrors of the Holocaust caused a major reassessment of this position based upon the conviction that a state’s mistreatment of its citizens represented a threat to international peace and security. This idea led to the inclusion of human rights within the United Nations Charter (1945) (e.g., Preamble, Art. 1 (3), etc.) and to the adoption of the Universal Declaration of Human Rights (1948) (UDHR), the International Covenant of Civil and Political Rights (1966) (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (1966).

The second innovation of this internationalist movement was the conception of human rights in the UDHR, of which civil liberties may be considered a part, as a unitary field—that the protection of civil liberties must also include the protection of the so-called economic, social, and cultural rights. As demonstrated by the subsequent promulgation and ratification of the ICCPR, the United States and a number of liberal Western states were able to resist this effort. Nonetheless, the UDHR provides strong intellectual support for expanding civil liberties to embrace a larger range of human rights.

People’s Rights: The Postcolonial Revolution

The final major theoretical enhancement to civil liberties emerged in the postcolonial world of the 1960s as expressed in the African Charter on Human and Peoples’ Rights (1981), though it was foreshadowed in the League of Nations mandate system and the UDHR. Specifically, civil liberties had traditionally focused upon the relationship between the individual and the state. This postcolonial movement demanded that attention be paid to social collectives within the borders of the state or distinguishable from the state. The movement provides recognition of the rights of aboriginal peoples—as a people—within the border of a state, including their right to maintain their language and culture.

Clearly, the recognition of peoples’ rights presents an enormous challenge to traditional civil liberties, which focus upon the rights of an individual in terms of how to conceptualize peoples’ rights as a civil right (if applicable), but more importantly, how to coordinate the protection of civil liberties and peoples’ rights. The former issue, conceptualizing peoples’ rights, raises significant questions about who is the appropriate rights holder. Are peoples’ rights vested within the collective or may the individual assert a personal interest in the peoples’ right? If the right is limited to the collective, what if the collective does not have a collective leadership or organization?

Coordinating civil liberties and peoples’ rights is potentially even more troubling. A peoples’ right to maintain its culture or identity necessarily involves legislating or regulating the behavior of the collective to sustain that identity. For example, one cannot maintain a language unless one can assure its continued use in education, local government, etc. However, what happens when the exercise of a peoples’ right, insofar as it exercises a state-like right, conflicts with the civil rights of a member of that community? This problem commonly arises out of conflicts between the protection of traditional culture and the rights of women to be free of sexual discrimination.

In the United States, issues surrounding peoples’ rights not only arise in connection with aboriginal peoples, but may also arise around religious communities with strong ethnic identities. Given the strong bias toward protecting the individual, these latter protections are generally very weak, if recognized at all.

Summary

The United States has a very strong tradition of civil liberties that is quite distinct from international approaches to this subject. Indeed, the United States often adopts an isolationist approach to international law and takes great pride in claiming the independence of its understanding of civil liberties and offering them as the progenitors of civil liberties for the rest of the world. Nonetheless, international theories have played a significant role in the recognition and development of civil liberties before their emergence in the United States and as they have evolved and continue to develop. Early theories, the Aristotelian and Lockean, contributed to their creation and how they were originally understood. The Rousseauists challenged the interpretation of civil liberties as rights and emphasized the aspect of a concomitant duty arising in connection with rights. Subsequent theories produced pressure to expand the types of rights to be protected to include social, economic, cultural, and peoples’ rights.

DAVID E. GUINN

References and Further Reading

• African [Banjul] Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).
• American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter- American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992).
• Aristotle, Politics (c. 335–323 BCE).
• Berlin, Isaiah. Four Essays on Liberty. New York: Oxford University Press, 1990.
• Charter of the United Nations, 59 Stat. 1031, T.S. 993, 3 Bevans 1153 (1945).
• Declaration of the Rights of Man and the Citizen (1789).
• International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966).
• International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966).
• Locke, John. Two Treatises on Government (1688).
• Rouseau, Jean-Jacques. The Social Contract (1762).
• Legal Instruments
• Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
• U.S. Declaration of Independence (1776).