Human rights – this is an area of study closely tied with philosophy, and most importantly, ethics, legal studies, and political science. In its modern form, it is a theoretical concept that developed after the Second World War, although its origins can be traced back to ancient times, to the Middle Ages, and of course, to the Enlightenment. Under communism, human rights were not a subject of study, nor were they taught anywhere. However, the very expression, “human rights,” naturally with the added prefix of “socialist” began to appear during the 1970s and 1980s, confusing and purposely distorting the idea, which came to us from the West. In our communist states, these were also called “bourgeois human rights.”

In the 1990s, the concept of human rights spread rapidly in Poland, but just a few years are not sufficient to make up for half a century of stunted social consciousness, and moreover, this concept evokes other misunderstood terms, such as democracy, left parties, rights, and so on, whose meanings were distorted not just by the People’s Republic of Poland (PRL), but also by politicians during the transition in Poland.

Yet it is impossible to have a discussion on human rights without defining what it means. Thus, without trying to lay out an all-encompassing definition (since there is none), let us try to define a basic understanding that we will use in our discussion on human rights.

Democracy is the first term that evokes confusion. Journalists often ask about the sense in working with human rights, when “democracy already reigns.” They equate democracy with rule of the people in which decisions are taken by a majority with free and fair elections. However, as history shows, majority rule can have very severe relations with individuals, as well as with different minorities. It was precisely the majority that sentenced Socrates to death and yet we would hardly conclude that this is good testimony in favor of Athenian democracy. If we ask a group of people to list ten or twenty traits that characterize either themselves, or their situation, it would appear that these lists would be dominated by characteristics of a minority. The majority, however, typically forgets about the problems of minorities, and in fact some of these problems evoke a feeling of enmity among the majority. This means that unrestricted majority ruleconstitutes a threat to individual persons and groups.  For this reason, in our discussion we will treat restricted majority ruleas democracy, limited by a set of rights and freedoms that are due to individuals and may not be violated by the majority. Thus, in a democratic society, human rights and human freedoms define the limits of majority rule and must be protected.

The principle of limited power is often called that of constitutionalism. Today this is usually reflected in written constitutions, in the chapters concerning human rights and freedoms. In particular, they place restrictions on the power of the legislature, forbidding members of parliament from raising their hands and voting that tomorrow all thieves should be hanged, all gypsies expelled, or land taken away from its owners. Thus, human rights and freedoms set the limits of majority rule in a democratic society.

One of the key concepts for human rights is the rule of law (state ruled by law). The first article of the current Polish constitution states that, “The Republic of Poland is a democratic state ruled by law.” A state ruled by law is a state in which there are clear, stable and universally known rules of the game between the individual and the authorities. It is a state where citizens can anticipate the authorities’ response to his conduct with a very high degree of probability, due to the fact that this kind of state is ruled by transparent and clearly stated laws, and not by the whims of functionaries or government officials.  

Of course, a state ruled by law is not necessarily a democratic one, and a democratic state is not necessarily ruled by law.

Human rights and freedoms are found exclusively in the individual’s relations to the state. This is the so-called vertical working of these rights. Attempts at describing relations between people (i.e. the horizontal working of these rights) based on human rights methodology and terminology have failed. Today when speaking about human rights, we limit it to the individual-state relations. Although family, love, friendship and neighborly relations are sources for a series of rights and obligations, the concept of human rights do not pertain to these ideas.

Human rights are individual, not collective. The individual is the subject of these rights. Thus, we also can not speak about minority rights in the same framework of human rights as this would be the language and domain of politics (a collective right being, for example, the right to autonomy). Similarly, there are no rights of the disabled seen as a group – merely the rights of each disabled person individually. The only divergence from this rule appeared in the 1960s when it was inserted in both international UN Conventions on human rights. The first article states that, “all nations have the right to self-determination.” The rights of nations are not derived from individual rights — this is a typical collective right. The reasons for introducing these provisions were political. Today, at any rate, when speaking about human rights, we are not thinking about the rights of nations, social classes or strata, but about the rights of individual people.

There are two basic groups of human rights: substantiveand procedural rights. Substantive rights are specific rights and freedoms of the individual: Freedom of speech, thought, religion, right to choose the place of residence, right to education and so on. Procedural rights are means of action available to the individual, and they include the related institutions which make it possible for him to exact the authorities’ observance of his freedoms and the enjoyment of his rights.

The division is not always clear-cut: for example, the right to court can be treated as substantive in some situations (if the court is used as an arbiter to settle one person’s dispute with another), or as procedural in other cases (if a person goes before the court to sue an institution which has violated his rights).

Substantive rights are divided into rights and freedoms. A right (sometimes called a positive right) is the active obligation of the authorities in relation to each individual. For example, the right to education places an obligation on the authorities to create schools thus making it possible for each and every child to receive education. Issues with paying for such education – either directly through tuition fees, or taxation paid into the budget – are of secondary importance here. If, however, a child is banned from education (due, for example, to the lack of a scholarship system in the former case), we are dealing with the violation of the right to education. Similarly, the right to court is the authorities’ duty to provide courts so that each individual is able to bring a matter of importance for him before the court for examination and decision.

Freedoms, (sometimes called negative rights), are prohibitions placed on those in power to prevent interference in certain areas of our lives. Freedom of speech, religion etc. are bans on the authorities’ interference in those areas of human activity. Briefly, if a person has a right, this means that the authorities are obliged to do something for that person: in the case of freedom, the authorities are obliged to refrain from action.

Our language does not always convey the meaning that separates positive and negative rights. Literally interpreted, the right to life would mean that the state was obliged to make a person immortal, while what is actually concerned here is rather freedom of life. Similarly, the right to assembly is a ban on interfering with peaceful assemblies of people, whatever their slogans or place of assembly – this is freedom of assembly. It is not worthwhile carrying out corrections in our lexicon, but it is essential to differentiate between positive and negative rights.

Some rights are regarded as inalienable. These are human rights that we can not give up. Even if someone signs a document that gives up his personal freedoms and willingly enters him into servitude, this document does not have any sort of legal consequence — it is simply deprived of meaning from the very start. 

In as much as everything tied to rights and freedoms occurs within the bounds of mutual relations between the people and state, then we must mention three completely different approaches to the nature of these relations.

In the first approach, it is only the state of its own volition which gives people this or that right. This means the people have as many rights as government deigns to give them. This sort of approach appears in the constitutions of all communist states[1] and in the constitutions of some European governments adopted in the nineteenth century.

The second approach is that of the social contract model, negotiated between the government and the people, as an aggregate sum of individuals (but not as a Marxist society which, being a “new quality” – may have its own aims independent of the will and interests of its members). Those who are ruled agree to give the government money, for example, to pay taxes, and the leader, from his or her side, is obliged to do something for them: realize certain rights and refrain from interference in certain areas of life, this means to recognize the people’s freedoms. This agreement, which can be more or less to each party’s advantage, and supplemented with a description of the power structure is often called the constitution.

The third approach is characteristic of the American model, whereby the people, in possession of their natural rights and freedoms as human beings, decide to create a government and confer it with power in order to create a better and more comfortable life for the people. And so that the government can act, the people agree out of their own free will to limit some of their rights, in effect giving them to the government. For example, they agree to limit their property rights and agree to pay taxes, or they limit their personal freedom and agree to serve in the army.

The last of these models differs quite radically from the first approach. In the first approach, people have as many rights as the government gives them. In the third approach, the government has only as much power as the people are willing to give it. It is precisely from this difference that an actual, practical consequence emerges. If we select a legal norm and try to apply it to a well chosen example, we will receive different decisions depending on the use of the first vs. the third interpretation of the individual-authorities relation. This means that even identical provisions may shape different social realities. The third approach, whereby the government is permitted only what the law allows and the individual is allowed everything that is not prohibited by law, is one of the foundations of human rights. One should bear in mind that the sole issue taken into consideration is that of the individual-authority relation, and that by stating a person is free to do whatever he is not prohibited by law only limits the possibility of coercive interference of the state in several areas of our lives, by no means diminishing our moral obligations towards those close to us, neighbors, or simply fellow human beings.

Fundamental to the concept of human rights is that human dignity (or, to use the language of the Catholic Church – dignity of the human person) is inherent and inalienable. Human dignity is derived from the very essence of humanity - it is inherent both to an innocent child who has never done anything good or bad in his life, as well as to the fully-grown criminal. Human dignity is not the same as personal dignity — a concept that is close to the idea of honor. Personal dignity is something we earn ourselves; it grows if we act in a dignified manner and it is lost when we commit evil deeds. Most important to the concept of human rights is the first of these two understandings, i.e. the understanding of human dignity. We find the basis for this in various beliefs and philosophical theories. For Christians, human dignity is derived from the concept that all persons are created in the image of God, each carrying within himself a part of the Creator’s dignity. However, it is not important how we substantiate the existence of human dignity, by what religion or which philosophical school of thought. Regardless of our starting point, we arrive in the end at a very similar list of rights and freedoms that belong to the individual in his mutual relations with state authorities, and rights to protect the individual from degrading and inhumane treatment at the hands of the dominant and powerful uses of government force.

Our rights and freedoms serve to protect, they are what shield our human dignity from the reach of government power. Human rights are not in a position to give us guarantees that we will be loved and taken care of, nor does it guarantee happiness in life, nor justice even in the case of minimal welfare — human rights only protect us from humiliation and incursions on our dignity, and even in this case only from one side, but from the strongest violator, i.e. government power, which in the case of democracy means majority will.

Thanks to human rights, the individual protects his own identity and his own uniqueness, because neither before us, nor after us, will there be anybody like us, with our own individual experience, feelings and thoughts. In a system that opposes respect for uniqueness and individual character, there is totalitarianism striving to form a “new man” as conceived by a dictator. These ideal citizens should speak and think in the same way. In extreme versions, they are dressed in North Korean or Chinese uniforms, and march or create tableaux vivants in stadiums, in honor of the Great Leader or the Great Idea.

Two basic concepts stem from human dignity: freedom and equality. Even today, the term “freedom” has a somewhat different meaning in North America than in Europe. This results from the two continents’ different histories and situations of their people at the close of the eighteenth century, when the modern concept of human rights started to be formed. In America, the settlers went west; fertile lands were in abundance, and the state they formed was merely to defend themselves against internal and external enemies. It was to establish the institution of the sheriff and a law enforcement system to protect themselves from the former, and an army to defend them from the latter. The Indians were treated as an external enemy. Any further interference with settlers’ lives would not merely be redundant, but even undesirable, as it would reduce their chances of success. Hence the concept of freedom from state; its role reduced to that of a watchman, the state was to perform only the function of defense. At the same time, a provision was inserted in the Declaration of Independence which spoke of the right to pursue happiness. It was interpreted as a negative right: Americans are free to pursue happiness, and the state can not interfere in their pursuit.

In the same period, Europe did not have any land to be taken; most people worked on someone else’s land and were subject to economic and sometimes also judicial authority of major landowners. These people hoped to receive freedom from the state which had the powers to call their direct oppressors to order. In this way, the concept of freedom through state was developed. It was accompanied by expectations that the state would make each individual citizen happy; formulated in this way, the right to happiness was reflected in the documents of the French Revolution. With time,this characteristic of the European concept of happiness was reflected in the continent’s history; it was in this area that systems appeared which believed that they knew what was best for people and how to make them happy, and some of them even tried to carry this into effect.

On the lips of politicians, the word equality can mean different things. If the person speaking about equality has — although this is to simplify a bit — a communist ideological background, then he has in mind equality that provides everybody with reliable means to maintain a given standard of living. A quite stark example of this approach was the slogan “we all have the exact same stomachs,” which is to mean that everyone should receive an equal amount.

For a socialist, equality means equal opportunities. Entering into life, people should have equal opportunities, and then the capable and industrious will achieve success, just as others will not make successful careers, but at least at the start they should be given equal chances. This way of thinking appears in the concept of human rights when the legal rights of individuals belonging to national and social minorities are considered.

Finally, the liberal understands equality as equality of rights and treatment under law. This understanding of equal rights is very close in its meaning to a prohibition on discrimination. Discrimination is any type of attitude differentiating rights or legitimacy, lacking a rational basis, based on physical or biological characteristics. By way of an example, forbidding the blind to drive cannot be regarded as a form of discrimination, because such a law has a rational basis. However, it would be discriminating not to issue drivers’ licences to blonds or gypsies. As practice shows, it is possible to create a just system that does not have discriminatory disposition. Until now, no one has been able to formulate a system that corresponds to the second condition on equality put forward by the liberals — more precisely, equality before the law. Always and everywhere, officials deal with wealthy and famous people differently than they deal with outcasts or representatives of socially marginalized groups. There are different systems that attempt to smooth over these disparities, but there has never been a case when full success was achieved. Perhaps the demand that all should be equally treated simply cannot be satisfied, but this is not to say that we should cease to pursue this aim. Naturally, elements of irrational differentiation may appear in social or interpersonal relations; this, however, goes beyond our current focus - the relations between individual and the state.

A discussion about equality and freedom is a starting point for compiling a list of substantive rights and the construction of institutions and procedures guaranteeing that the state will safeguard those things that fall within its scope.

The majority of substantive rights have a limited character.  Of the rights enumerated in the European Convention on the Defense of Human Rights and Basic Freedoms, the only areas that limitations cannot be applied are in connection to the freedom of every person from torture and slavery. All remaining rights can be limited in cases when they contradict the rights and freedoms of other people or other values, for example state security.  However, the government can deviate from its obligations to protect rights freedoms when and only when there are concrete circumstances, and only when it is on the basis of law — the leadership itself does not have the right to introduce limitations according to it own decision; the degree of limitation of rights and freedom should correspond to the severity of situation and the protection of a particular value. Thus, when the government introduces limited measures in this case, these measures should correspond with principles accepted in a democratic society of free people. Questions of whether or not there were government violations of one or another of these conditions are dealt with through the European Court on Human Rights. In the context of European normative acts, we, people having been raised in communism, have an unsound fear that if government has the power to limit rights, then in practice it will destroy them altogether. Yet there are limitations and there must be limitations, but the radius of their actions and character should be subject to strict control. The possibility to limit human rights by no means acts to abolish their essence. The search for limitations on rights and human freedoms is highly complex, gives rise to conflict, and scientific and technological progress breeds ever new problems.

The very recognition of human rights and freedoms would not have little meaning were it not for the existence of procedures, thanks to which each person can protect him or herself from violations of these rights. Those in power invariably tend to violate rights, either because it makes it easier to govern or it is simply an easier path for attaining its goals. This tendency can be found regardless of the political system. This is precisely why it is so important to have a set of procedures that not only prevent such action, but also prevent the government from attempting to neglect its duties and getting around the rules. In the constitution of the PRL there were human rights and freedoms, and the PRL ratified the International Covenants on Civil and Political Rights. However, there were no procedural rights for Polish citizens, i.e. no possibility to make a formal complaint that security service functionaries, the militia, or even a ministry had violated human rights. Attempts to cite the constitution or international rights — in the best case — would only be met with a smirk. Under governments with democratic traditions, the courts - administrative and constitutional - are the main protection of human rights and freedoms, along with a parliamentary representative on human rights (ombudsmen). In order to protect human rights, citizens work through the civic institutions, legislative initiatives, referendums, individual constitutional complaints, petitions, direct applications to government bodies and international fora on human rights, non-governmental organizations that are given the right to act legally, and so on. Some substantive rights, such as freedom of speech, the right to information on the action of state authorities, freedom of assembly and association, should be regarded not just as something valuable that should be protected, but as instruments that enable the protection of other rights. Finally, it should be said that it is easier to protect human rights if there are appropriate political institutions that act on the principle of the division of power among legislative, executive, and judicial branches.

Human rights are constantly developing and are becoming more numerous both within the legislative bodies of government as well as on the international level (in this regard it should be noted that international rights are defined only as a minimum standard of human rights protection, common for states with different traditions and cultures; further rights and freedoms are added by national legislature). The current subject of discussion does not only concern new, additional rights, but also new problems and threats, for example, the danger of human rights violations connected with the rise of information technology and problems related to the limits of scientific research. From these changes arise new rights and freedoms, and so continues the search for more effective protection of these rights and measures to counteract government violations on formally recognized rights. The tendency to limit individual rights is an immanent attribute of government. Thus, the need in society to protect human rights will never disappear. It can be seen today that the more mature a democracy, the stronger and more numerous are the organizations protecting people from government intrusions on the individual’s own and unique character.