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Michael Sievernich SJ

460 Years of Human Rights

 

From: Stimmen der Zeit, 12/2012, P. 816-826
webmaster's own, not authorized translation

 

    The concept of human rights appeared for the first time in 1552 in a treatise by Bartolomé de Las Casas. MICHAEL SIEVERNICH, professor emeritus of pastoral theology at the University of Mainz and Honorary Professor of the same discipline at the Sankt Georgen Graduate School of Philosophy and Theology, examines the importance of this concept in the work of the Dominican, and compares it with later declarations on human rights.

 

460 years of human rights? It is to be expected that critical contemporaries will count back at once. They will come to more or less than half of that period - depending on whether they take the North American declarations on human rights of 1776 or the French of 1789 as a basis. But already in the Early Modern Age you come, both in substance and concept, across human rights in the sense of fundamental, trans-positive rights of the individual. The term was coined by Bartolomé de las Casas OP (1484-1566) {1} in view of the slavery in the New World. It was a terminological innovation and included an argumentative substantiation of the civil rights and liberties and vital rights of the indigenous population of America and of the people deported from Africa. Narration and argument of Las Casas are another chapter in the "new genealogy of human rights", which has convincingly been described by Hans Joas {2}.

This early modern discovery turns up in one of the critical treatises published by the 70-year-old Las Casas in 1552. In it he attacks the systemic injustice in Spanish America. In the treatise on the enslavement of the Indians he demands "human rights" for them. "With it the idea of human rights was born" {3}, is laconically noticed by the historian Egon Flaig.

In the to date established master narrative about the genesis of human rights the focus is on the declarations on human rights of the late 18th century, but the contribution of the 16th century and the Spanish American thought is not sufficiently taken into consideration. In a recent portrayal of the Human and Civil Rights, for instance, the French Declaration is seen as "the initial spark and the everlasting example," whereas the North American declarations are only suited as "antecedents," and the Spanish Late Scholasticism or the contribution of Las Casas are not even mentioned {4}. Sometimes, however, the realization dawns, when e.g. in a broad-based "archeology" of human rights in the early modern period it says:

"The manner in which Las Casas chose his words in 'Brevisima Relación' arouses virtually the expectation in the modern reader that at any moment a term such as derechos de los hombres is mentioned. But this is not the case." {5}

It is nevertheless mentioned - not in the "Brief Account" but in another of the treatises of 1552, where the slavery of the Indians became the shock triggering knowledge for the substantiation of "human rights". Las Casas sees the facts of the Indians' history as 'loci', as theological, ethical and juridical positions. They trigger not only compassion, but also interdisciplinary reflection.

 


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On the one hand, this change of perspective made the slavery in the conquered Spanish America the starting point for the formulation of human rights, on the other hand the revolutionary declarations of rights in North America and France were initially not applied to slaves.

 

American Human Rights (1776)

As part of the revolutionary events in the second half of the 18th century, in the United States and in France catalogs of human rights emerged in quick succession. In addition to popular sovereignty and separation of powers, the declarations provided also civil rights and liberties for individuals, depending on the interests of the new elite, the question to whom these rights should now apply remained open. According to the wording, they applied universally to all people. But at first they were not applied equally to all people but discriminatively by race, social status, income and gender.

Among the American declarations, the Virginia Bill of Rights of June 12, 1776 stands out. Its catalog of rights provides that "all men are by nature equally free and independent and have certain inherent rights" that can not be lost. They include in particular the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety (1). It provides also the "free exercise of religion", according to the dictates of conscience, and rejects violence and force in religious matters (No. 16).

Barely a month later, on 4 July 1776, the Declaration of Independence was unanimously adopted by the Continental Congress. In it the 13 British colonies proclaimed their independence from the British Crown. In the preamble, certain "truths" are held as self-evident. Prerequisite is the argument that "all men are created equal", and "that they are endowed by their Creator with certain unalienable Rights". These rights include "Life, Liberty and the pursuit of Happiness." 'Happiness' was inserted here instead of the originally intended 'property'. Freedom of religion is not explicitly mentioned.

 

French Rights of Man (1789)

The French "Déclaration of the Rights of Man and of the Citizen" (Déclaration des droits de l'homme et du citoyen) of 26 August 1789 is considered to be Europe's first declaration of this kind.

 


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In the preamble, the by the National Assembly resolved project is justified by the sentence that in a solemn declaration the "natural, inalienable and sacred rights of man" (les droits naturels, inaliénables et sacrés de l'homme) had to be put into writing. For "ignorance, the lapse of memory or contempt of the rights of man" were the sole causes of public misfortunes. "Men are born and remain free and equal in rights" (Les hommes naissent et demeurent libres et égaux en droits), so programmatically reads the first article, where the social distinctions can be founded only on the common utility.

"{Personal} freedom [liberty], the {ownership of} property, {personal} safety and resistance to oppression [the ability to resist tyrany]" are mentioned as natural and imprescriptible rights of the man (droits naturels et imprescriptibles de l'homme) (Article 2). Religious freedom is subsumed under the freedom of expression (Art. 10).

The quasi-religious [religioid] claim is expressed in the allegorical painting by Jean Jacques Le Barbier. It has influenced for a long time the pictorial propaganda of the revolution (Fig. 1). The picture shows the Preamble and the 17 provisions of the declaration in the form of the Mosaic Tablets of the Law. In the way in which Moses on Mount Sinai received the Ten Commandments on the two "tables of stone" (Ex 31:18), the people now likewise receives the new commandments in a kind of cult succession. The revolutionary symbolism of Pike, Fasces and Phrygian cap finds its place between the two Tablets. The two female figures are allegories for the in the colors of the tricolor dressed France who breaks her chains, whereas the winged figure points with the scepter of power to the rising sun with the triangle of equality and the observantly monitoring eye of reason - a secular inheritance from the Christian Trinity iconography.

According to the wording, the human and citizens' rights were for "human beings" without restriction, but not all people enjoyed fully these rights. Women who fought for equal rights for women and the abolition of slavery, as the writer Marie Gouze (pen name Olympe de Gouges), drew very soon people's attention to this contradiction. And when the French Revolution during the period of the "Grand Terreur" (1793/94) went off the rails and thousands of victims died under the guillotine, this was certainly not a human rights policy.

 

Human Rights for Slaves?

In one paradoxical point the French and North American declarations of the rights of man agree: they declare in solemn and universal form equality and freedom - but de facto not all people are destined to enjoy them. Semantics and pragmatics of the declarations diverge often widely.

 


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Figure 1: Iconography of the French version of human rights

 


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The most blatant contradiction is the coexistence of those declarations on human rights and the common practice of slavery:

"The same philosophers who regarded freedom as the natural state of man and declared it to be an inalienable human right accepted the exploitation of millions of slave laborers in the colonies as part of the given world order. Even as on the stage of politics the theoretical demands for freedom were translated into revolutionary action, the on slave labor based colonial economy remained shrouded in mystery and kept the system up and running behind the scenes." {6}

In revolutionary France the "Code Noir" (1685) was still in force. It had been issued by the French King Louis XIV in order to regulate the dealing with the slaves in the colonies and the mother country. It legalized slavery as an institution and the treatment of slaves as movables, as well as graded corporal punishment up to torture and killing.

As yet in 1791 the National Assembly endorsed the slavery in the colonies, even though civil rights were granted to the free colored persons {7}. Slavery was removed by the slaves themselves. In a mass rebellion in the same year 1791, they took direct control of the freedom struggle in the rich French colony of Saint-Domingue. It was the de facto abolition of slavery in the colony which led to the decision of the Republic to abolish slavery by the law of February 4, 1794. The Lorrainese pastor and later constitutional bishop Henri Gregoire (1750-1831) was here decisively involved. He advocated equal rights for religious minorities and colored persons. In addition to the English abolitionists he referred also on Bartolomé de Las Casas, who was thus present in the French debate on slavery {8}. It is one of the ironies of history that in 1802 Napoleon again legalized slavery, a state of affairs that lasted until 1848.

Similar tensions and contradictions became apparent also in the American Revolution. Although the declarations grant "inalienable rights" to all people (all men), these apply by no means to everybody. In North America slavery did not, as in France, occur in distant colonies. It could be seen immediately outside the front door - especially in the southern states. Already at the end of the 19th century Georg Jellinek wrote:

"In spite of the proposition that all men are created free and equal, at that time the negro slavery was not abolished. 'Man' is replaced by 'freeman' in states with slavery." {9}

At the end of the 18th century, the black slavery in North America included an estimated 20 percent of the total population. The Declaration of Independence of 1776 left open the question of slavery, and thus the concrete extent of the proclaimed civil rights and liberties:

 


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"The half-measure of the American Revolution became particularly manifest in the continuance of slavery as an institution." {10} The egalitarian principles of freedom in the "Declaration of Independence" did not lead to the disappearance of slavery, on the contrary, especially the cotton boom fueled its increase. While in the first census of 1790 a total of nearly 700,000 slaves were counted in the United States, their numbers grew over the next two decades to more than 1.1 million (1810). In the then system of hereditary "chattel slavery" the slaveholder was owner of life, work, and descendants of his male and female slaves. He had all rights of disposal. Around 1860, before the start of the Civil War, there were finally in the South no less than 3.9 million slaves (about 12% of the total population) {11}.

Even the main author of the Declaration of Independence, Thomas Jefferson was slave owner. He kept slaves throughout his life, whether as plantation-owner on his aristocratic residence Monticello in Charlottesville (Virginia) or as the third U.S. president from 1801 to 1809 in the newly built White House in Washington - even though he in his tenure prohibited the import of and the trade with slaves. Not until after the Civil War the "peculiar institution" of slavery, which divided the country in opponents and supporters, was prohibited. In the on 1st January 1863 signed proclamation of the emancipation of the slaves, President Abraham Lincoln stated at long last - 87 years after the Declaration of Independence - that "all persons held as slaves within any estate [...] shall be then henceforward and for ever free." {12} But not until after the Civil War of 1865 the 13th amendment was attached to the Constitution. It abolished once and for all the slavery in the United States. Already in 1840 Alexis de Tocqueville clairvoyantly noticed that the formal abolition would not be able to solve all problems:

"The moderns, then, after they have abolished slavery, have three prejudices to contend against, which are less easy to attack and far less easy to conquer than the mere fact of servitude: the prejudice of the master, the prejudice of the race, and the prejudice of color. {13}

Only the United Nations' Universal Declaration of Human Rights of 10 December 1948 does not only state that "All human beings are Born free and equal in dignity and rights" (Art. 1), it also prohibits expressly slavery (No one shall be held in slavery or servitude), servitude and slave trade in all their forms, even if the declaration and its adoption in nation-state constitutions do by no means already guarantee their practical enforcement.

The declarations on human rights of the 18th century were faced with the problem of the exclusion of the (black) slaves despite universally formulated rights for all people, whereas in the 16th and 17th centuries in Latin America the idea and concept of "human rights" as rights of individuals flashed through the mind of protagonists: they discerned that the slaves were victims of violence and systemic injustice.

 


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This was by no means a matter of course, since at that time one used rather the Aristotelian theory. According to it there were people who were "slaves by nature" (φυσει δουλοι, Politics 1254b), applied to the Indians, these became homunculi {14}.

 

Regulations of Human Rights (1552)

In ancient American cultures such as the Aztec, slavery was not unknown. But coercive conditions to such an extent found their way into South America, across the whole continent, only with the Spanish and Portuguese colonial masters {15}. According to the then interpretation of the law, which was rooted in the Roman law of war, slavery was legal under the condition that the people concerned were captives who had been caught in a "just war." As part of the conquista, a conquistador proclamation (requerimiento) was often used as a pretext, since even the Amerindian resistance to the conquest or the opposition to the mission must serve as reasons for a "just war" and thus as reason for legal enslavement. And the institution of the encomienda - a combination of usufruct of the working power and ensuring the means of subsistence - developed de facto into a slavelike institution of forced labor and restriction of freedom for all those Indians who were "entrusted" (encomendar) to the colonists. Sensitized by the prophetic criticism of some members of religious orders, the kings endeavoured to curb or prohibit slavery by means of legislation, for example by the "New Laws" (Nuevas Leyes) of 1542/1543. These laws expressly prohibited slavery and demanded the liberation of the slaves, but it was impossible to enforce them against the resistance of the colonists.

As the indigenous population rapidly decreased, the crown sought a way out by importing African slaves for the work in the plantations and mines. This in turn promoted the transatlantic slave trade, in which apart from Hispanic and Luso American also the Dutch, French and British colonies in North America were involved. On the whole it is calculated that in the colonial period about twelve million Africans were with heavy casualties deported as slaves to the southern and northern parts of America {16}.

One of the critical protagonists for the Others {17} was Bartolomé de Las Casas. He himself had benefited of an encomienda in Cuba before he mended his ways due to a sapiential text (Sir 34, 21-27). He joined the Dominican Order and became later bishop of Chiapas (southern Mexico). But he soon resigned and went to Spain where he stood up for the rights of the Indians (and Africans). Among the treatises which he had printed in 1552 in his native town of Seville, there is also the strictly argumentative essay on the slavery of the Indians where Las Casas coined the phrase "human rights".

 


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In this treatise written on behalf of the Council of the Indies he uses a dual strategy in order to substantiate his view. On the one hand, he denies in principle the legitimacy of wars of conquest, and so the entire practice of enslavement in the New World lost its legal basis:

""All the Amerindians who were turned into slaves in the West Indies of the Ocean Sea from its discovery to the present day, have been enslaved illegally (injustamente)." {18}

On the other hand, he points to the inherent rights of freedom, life and equality which do not allow to keep someone in slavery. - In his statement of grounds Las Casas refers to various principles, including the rules of the "human rights" (derechos humanos), which were confirmed by reason (razón), natural law (ley natural) and the Christian commandment of love (ley de caridad). With this, the concept of human rights in the specific sense of individual rights emerged probably for the first time {19}. In a mini-catalog they include "life and liberty," in the same way as the Declaration of Independence mentions "life and liberty". For Las Casas argues that "apart from their life (vida), freedom (libertad) is the most precious and valuable asset of human beings and is therefore preferable to all other things" (TI 85).

In his statement of grounds for his position the Spanish Dominican and Bishop Las Casas refers to numerous sources of both Laws, and in particular to the legal rules of the collections of the civil law (Corpus Iuris Civilis) and canon law (Corpus Iuris Canonici) {20}. From the civil law, he quotes for instance the legal rules that freedom (libertas) was "an invaluable thing" and was "preferable to everything else" (No. 106, 122). And from the canon law he quotes that sin will not be forgiven, "if the stolen thing is not restituted" (No. 4).

In the treatise on slavery, Las Casas emphasizes like a leitmotif the always preferable freedom (cf. TI 81, 83, 85, 94 f, 97), whereas in the late treatise De Regia potestate (1563), which is summarizing his political thought, he justifies the original freedom of people:

"For according to the natural and international law, from the beginning of mankind each human being, the whole earth, and every good was originally free and allodial, that is, free from tax and not subjected to slavery (servitus)."

Due to their rational nature, all people are free and by nature equal and endowed with free will. That's why God had created nobody as servant or slave (servus) of others. On the contrary, due to man's rational nature, freedom is a "necessary inherent right" (jus de insitum hominibus necessitate). It is therefore impossible to justify slavery (servitus) by natural law, even if it occurs by chance or fate {21}.

 


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Regarding the history of the problem of slavery, there is a process of change in Las Casas' life {22}. For at first he had only fought the Amerindian slavery but supported the import of black slaves as laborers. But he, who at times had slaves at his disposal, radically changed his attitude and deeply regreted the mistake of unequal treatment. In his "Historia de las Indias," he bluntly stated that "the slavery of the blacks is just as unfair as that of Amerindians," and that the same law applies to all {23}.

The papal bull "Sublimis Deus" (Veritas ipsa), promulgated by Pope Paul III on June 2, 1537, belongs also to the temporal and factual context. In it the term "human rights" is admittedly not found, but a mini-catalog of them. For the Pope proclaimed with universal scope the civil rights and liberties and property rights for the Amerindians and other peoples as well as the prohibition of slavery. He stated that they

"are by no means to be deprived of their liberty or the possession of their property, and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect." {24}

The fact that Las Casas invented and used the specific term "human rights", has by now found interdisciplinary confirmation and will enrich the discourse upon human rights {25}. But he was not the only one who used the term. For a century later, also the Spanish Capuchin Francisco José de Jaca (1645-1689) spoke of the despised "human rights" (humanos derechos), as he saw the plight of African slaves in the port of entry Cartagena de Indias (today Colombia) and together with his fellow monk Epifanio de Moirans advocated the freedom of slaves and the abolition of slavery (1681) {26}.

Notwithstanding the epochal significance of the declarations on human rights of the late 18th century, the Hispanic American places of origin of the human rights in the early 16th and the 17th century show that not only the political emancipation but also the commitment to slave emancipation and abolition of slavery shaped the history of human rights. According to the constitutional expert Ernst-Wolfgang Böckenförde, Las Casas is

"an excellent example of how out of a definite, unflagging commitment, namely the liberation of the Indians, insights of great importance in the field of philosophy of law and political philosophy emerge and are put in a nutshell" {27}

The recognition of the Others and the empathy with the suffering of the Amerindian and African slaves became the prophetic starting-point for Bartolomé de Las Casas to demand, substantiate and possibly implement the supranational and always preferable "human rights" of life and liberty.

 


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NOTES

{1} About life and work see M. Delgado, Stein des Anstoßes. Bartolomé de Las Casas als Anwalt der Indios (Sankt Ottilien 2011).

{2} H. Joas, Die Sakralität der Person. Eine neue Genealogie der Menschenrechte (Berlin 2011); about it: A. Halbmayr, Die Heiligkeit des Menschen. Hans Joas' neue Genealogie der Menschenrechte, in this journal 230 (2012) 424-427.

{3} E. Flaig, Weltgeschichte der Sklaverei (München 2009) 164.

{4} See E. Wolgast, Geschichte der Menschen- u. Bürgerrechte (Stuttgart 2009) 53,20.

{5} W. Schmale, Archäologie der Grund- u. Menschenrechte in der Frühen Neuzeit. Ein deutsch-französisches Paradigma (München 1997) 288. About "Brevísima relación" see B. de las Casas, Kurzgefaßter Bericht von der Verwüstung der Westindischen Länder, edited by M. Sievernich (Frankfurt 2006).

{6} S. Buck-Morss, Hegel u. Haiti. Für eine neue Universalgeschichte (Berlin 2011) 41.

{7} About the position of the blacks and slaves after the declaration on human rights see L. Hunt, Inventing Human Rights. A History (New York 2007) 160-167.

{8} See A. Moser, Las Casas u. die Französische Revolution von 1789, in: Jahrbuch für Staat, Wirtschaft u. Geschichte Lateinamerikas 7 (1970) 225-238.

{9} G. Jellinek, Die Erklärung der Menschen- u. Bürgerrechte. Ein Beitrag zur modernen Verfassungsgeschichte (1895) (München ³1919) 70.

{10} U. Sautter, Geschichte der Vereinigten Staaten von Amerika (Stuttgart 72006) 88.

{11} For an overview of the numerical development of slavery see P. Kolchin, American Slavery 16191877 (New York 1993) 242.

{12} See A. Lincoln, His Speeches and Writings, ed. by R. P. Basler (Cleveland, New York 1946) 690.

{13} A. de Tocqueville, Über die Demokratie in Amerika. Both parts in one volume (München 21984) 396.

{14} About the controversy see M. Delgado, Die Indios als Sklaven von Natur? Zur Aristotelesrezeption in der Amerika-Kontroverse im Schatten der spanischen Expansion, in: Der Aristotelismus in der frühen Neuzeit Kontinuität oder Wiederaneignung? (Wolfenbütteler Forschungen 115), edited by G. Frank (Wiesbaden 2007) 353-382.

{15} For a overview of Hispanic America see J. Andres-Gallego, La esclavitud en la América espariola (Madrid 2005).

{16} See J. Meier, Der Überlebenskampf der Negersklaven. Kirchengeschichtliche Sichtung der afroamerikanischen Frage, in: Entdeckung, Eroberung, Befreiung. 500 Jahre Gewalt u. Evangelium in Amerika, edited by W. Dreier and others (Würzburg 1993) 66-81.

{17} See M. Sievernich, Der Kampf um den Anderen in der Frühen Neuzeit. Mission u. Menschenwürde in Amerika, in: Schweizerische Zeitschrift für Religions- u. Kulturgeschichte 105 (2011) 11-34.

{18} B. de Las Casas, Traktat über die Indiosklaverei, in: the same, selection of works, vol. 3/1: Sozialethische u. staatsrechtliche Schriften, edited by M. Delgado (Paderborn 1996) 59-114,67; in the following text quoted as TI with page reference (Spanish: B. de Las Casas, Tratados de 1552, Obras completas 10, Madrid 1992).

{19} As far as terminology is concerned, the pluralization "human rights" (derechos humanos) is of importance. It must not be confused with the singular form. The latter means in canon law the counterparts of "human law" (ius humanum) and "divine law" (ius divinum).

{20} About the use of those legal regulations see J. A. Cárdenas Bunsen, Escritura y Derecho Canónico en la obra de Fray Bartolomé de las Casas (Madrid 2011) 90-93.

{21} See B. de las Casas, Traktat über die königliche Gewalt, in: the same, selection of works 3/2,187-248,197; De regia potestate (Obras completas 12), edición de J. González Rodríguez (Madrid 1990) 34 ff.

{22} About Las Casas' attitude to Africans see Ph. I. André-Vincent: Bartolomé de las Casas. Prophète du Nouveau Monde (Paris 1980) 218-233; see also I. Pérez Fernández, Bartolomé de Las Casas contra los negros? Revisión de una leyenda (Madrid 1991)

.

 


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{23} B. de Las Casas, Geschichte Westindiens (Werkauswahl, vol. 2), edited by M. Delgado, 139-324, III, 129; 281.

{24} Introduction and translation: Gott in Lateinamerika. Texte aus fünf Jahrhunderten, edited by M. Delgado (Düsseldorf 1991) 151 f., 152. See also the very similar Breve "Pastorale Officium" of 29th May 1537 to the archbishop of Toledo (DS / DH 1495).

{25} As part of the edition of Las Casas' works (see note 18). I have in 1995 pointed to this first appearance of the term "human rights" in Las Casas (TI 82 and selection of works 3/1, 64). This thesis is interdisciplinarily confirmed by: M. Gillner, Bartolomé de las Casas u. die Menschenrechte, in: Jahrbuch für christliche Sozialwissenschaften 39 (1998) 143-160; K. Hilpert, Die Menschenrechte in Theologie u. Kirche, in: Theologie u. Menschenrechte, edited by M. Durst u. H. J. Münk (Freiburg/Schweiz 2008) 68-112, 80; Flaig (note 3); L. Gschwend and Ch. Good, Die spanische Conquista u. die Idee der Menschenrechte im Werk des Bartolomé de Las Casas (1484-1566), in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte (Kanonistische Abteilung 95) 126 (2009) 217-256.

{26} F. J. de Jaca, Resolución sobre la libertad de los negros y sus originarios, en el estado de paganos y después ya cristianos. La primera condena de la esclavitud en el pensamiento hispano. Edición crítica por Miguel Anxo Pena González (CHP II, 11) (Madrid 2002) 19.

{27} E.-W. Böckenförde, Geschichte der Rechts- u. Staatsphilosophie. Antike u. Mittelalter (Tübingen ²2006) 378.

 

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