Human Rights

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Journal of Azerbaijani Studies

49

HISTORICAL DEVELOPMENT OF THE THEORY OF HUMAN RIGHTS Saadat Novruzova (Khazar University, Baku, Azerbaijan)
1. RIGHTS OF INDIVIDUALS IN THE PERIOD OF ANTIC CIVILIZATION In the ancient world, in the epoch when statehood and politico-legal ideas began to evolve, all m ths heavil overwhelmed culture and life of people! "he m ths were primaril reflected in the concepts of world rule, truth and justice, necessit of compliance with established rules, power as means of their satisfaction, forms of statehood! At that time there was process of formation for political and ethic consciousness that enabled humanit to politicall organize the public life! "he ides of justice can be seen in the ancient monuments of jurisprudence such as the #aws of $ammurapi, #aws of %anu, #aws of &' tables of $ammurapi, who ruled in (ab lon as of &)*+ to &,*+ (-, the introductor part of the #aw sa s. /%ardu0 sent me to rule the people justl and bring happiness for the countr , then I endowed the countr with truth and justice and improved the conditions of people!1& "he sovereign godliness in the opinion of $ammurapi, not onl rewards submissive and punishes disobedient but also communicates its laws that establish justice in their relations between themselves through the 0ing! Initiall , human consciousness was overcome with the godl origin of law, which was associated with the values bestowed b 2od! "he godl law functioned in Ancient 3g pt, 4ersia, Ass ria, and Shumer! In the 3ast the concept of natural law emerged as the law of charitable persons, which is to be followed b ruler and other members of the societ ! Anti5ue legal reasoning also oriented towards natural, unchangeable, infinite, genuine truth, with less religious hue! All the ancient 2ree0 thin0ers and 6oman law ers recognized its e7istence! 8or Ancient 2reece it was t pical to thin0 of the natural law in terms of justice deriving from the nature!
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$uman 6ights and #aw, %!I!Abdulla ev! Saint 4etersburg, '++4 p!&9

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Anti5ue classis legal theor and practice was built upon aesthetic beginnings, including the 5uestion on the situation of an individual in the state! 4oliticolegal thin0ing and practice of police organization of the societ weren;t et aware of the rights of personalit ! "he condition of having rights in the anti5ue police was citizenship! "he main value of police was recognized to be not an individual freedom of a personalit , but collective freedom-freedom of a person as a citizen of police forming the base of reasonable jurisprudence "he primitiveness of state <collective= values inherent to 2ree0 democrac is e7plained b institute of ostracism often used b Ancient 2ree0s <banishment of citizen from the countr for &+ ears, during the time of which he was deprived of neither citizenship nor propert =! "he institute of ostracism had the right of anti5ue statehood to punish innocent persons under assumption that it is allegedl warranted b state interests <for e7ample, if an ac5uired too big authorit than0s to his personal merits=! All the citizens in the police were perceived as e5ual! "his form of human societ found its ade5uate reflection in the concept /izonomia1 <isonomia=, i!e!, t e5ual participation of all the citizens in the e7ercise of power! "he s mptoms of the idea of individual rights <free persons=!i!e!, principle of citizenship, during >-I> (- in ancient polices <Athens, 6ome=- major step on the path to progress and freedom! "he free citizens of polices had certain rights and obligations, specificall the right to participate in the management of state affairs in national assemblies <ecclesia=, in launching jurisprudence, rights for private propert , possibilit of signing various transactions, right for freedom of speech and etc! :amel e7istence of these rights and specificall the right for private propert created prere5uisites for the formation of civil societ and civil laws! "he mechanism of the realization and support of the rights of Athens citizens under primac of governmental interests based on the principle of division of power into legislative and judicial was sufficientl elaborated! "he Athens law covers a whole s stem of measures ensuring stable development of the societ and prevention of antidemocratic overthrows! "he outstanding role of the institute of citizenship is related to the fact that for the first time in the human histor there was not onl advanced but also confirmed on certain rights of citizens as well as their governmental support! :evertheless, human didn;t use freedom in the present sense of the word! 3llin didn;t have a notion about them and not even supposed that there ma b an rights in respect with state! "he citizens of polices identified themselves with state, its goals and pursuits! "he autonom of a person and integrit of private propert were strictl limited even in anti5ue democratic autonom ! 4erception of the citizens of anti5ue

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polices was built in such manner that in the individual and social jurisprudence their dominated the idea on primate state interests and not their harmon ! :evertheless, in anti5ue polices1 </cit towns1=,-wries A!(! Il in-ta0es its sources from the legal s stem of the @est, basing on private propert and active role of an individuum, the rights and freedoms are supported b all penetrating and devastating state dictate, violence and pilferage1 '! 4olitical democrac and freedom were inherent of the ancient police! "he anti5ue t pe of the interrelations between the citizen and state <police as civil societ =, rights and law was primar in the histor of politico-legal thought, characterized b ju7taposition of the written laws <nomos=, the law of nature <fusis=! According to the opinion of m stics <2eorge, $ippie=, it is related to their correspondence <or non correspondence= or generic natural norms, regulating human life or the nature of the human being himself! Ather m stics <#i0ofron= call the attention on the individual rights and interests for which support laws are instituted and therefore the laws, not anticipating an rights are not obligator for those whose rights and interests are violated b them! "he struggle of democratic and antidemocratic tendencies in anti5ue societies defined the difference theoretic approaches to the rights of a person! "he ideas of political democrac and right of an individual were developed b such scientists as Aristotle, 3picures, and -icerone, including 6oman law ers! "he guessed that the right is not godl and hence the result of agreement between human beingsB neither customs, nor codes of laws create sufficient base for just social order! "he notion of godl order was replaced b abstract concept of charit or justice! :atural-legal principles basing on the interrelationships of the individual and government were the focal point of both senior and junior m stics <4rotagor, 2eorge, $ippie, Antifont, # cofron= "he ancient 2ree0 philosophers-m stics advanced the ides of e5ualit of all the people b birth having e5ual, natural rights conditioned b nature, that ma guaranteed b law! According to them, a citizen of an cit has the same rights as the citizen of an other cit , and a member of one class is e5ual to the other member of the class, for b nature a man is e5ual to another man. all have one and the same needs! "he basic principle of views of m stics was formulated b 4rotagor, who said among others. /"he dimension of all the things-human beings e7isting that the do e7ist and not e7isting that the don;t e7ist1 <4laton, "eetet, &*'a=! According to 4rotagor, it was human and not traditionall godl
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"heor of State and #aw! Saint 4etersburg, &99C p! '*

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beginning that came out as the dimension and measure of all the creation! "he a7is of all the universe is b 4rotagon- a human being! "he term of /human being1 was not thoroughl defined b this thin0er! 6ather, 4rotagor has in view an individual human, irrespective of his status in a concrete societ B as such he is e5ual to an other man under all endlessl multifarious individual differences! "his concept encompassed general information on the epoch of 4rotagor, which was characterized as the epoch when slave-owning was at its height liberated from tribal authorities and religious-m stic world outloo0s! As a matter of fact, 4rotagor recognized the e5ualit of all the human beings b their e5ual involvement in wisdom and charit ! In his view, the state, laws, political virtue is the product of human consciousness, high achievement of human being and it is the state and laws which are called upon to provide justice in the societ ! "he state with the e5ualit of all the people b nature is also proponed b Antifont who b reference to all the persons-ellins and barbars, noble and ordinar -sa s that the have e5ual natural needs! In his view, ine5ualit derives from human laws and not from nature!9 "he assumptions that a man is the dimension of all the things in the words characterizes the aspect of philosophical problems of >-I> centuries (-, when human being was at the center of the focus <and not the nature= and not human being in general sense, but a personalit , since his being a measure of all the things presupposes his individualit ! It was m stics who advanced the idea of e5ualit of all the people in political and legal terms! "hough egalitarian view of the majorit of m stics covered onl the citizens of police! (esides, m stics didn;t elaborate the idea of e5ualit in the legal aspect! "he anti5ue classic concept of lawfulness basing on the idea of police and governed b sensible law also included the concept of contractual relations between the citizen and police <#i0ofron, Socrates=! "he law as interpreted b #i0ofron is a simple contract and /simple guarantee of personal rights1! In his opinion, the individual rights of a person were the natural rights that were covered b contract on the establishment of state communalit ! 6efuting ine5ualit of human beings b nature, #i0ofron considered nobleness of bac0ground as nonsensical! 4robabl , he assumed that 2od created ever bod e5uall and the nature didn;t ma0e an one into a slave! $e also refuted the privilege b birth. /"he privileges of a noble b birth are fictitious and all the privileges are based on agreements.14 "his notion according to Aristotle in
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Antholog of world philosoph ! %! &9C9! "!&! 4!&! 4!9'& Antholog of world philosoph ! %! &9C9! "!&! 4!&! 4!9')

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essence transforms the law into an agreement, which in its turn ensures mutual justice for people! In his opinon, #i0ofron characterized state communication as a result of the contract between the people on mutual alliance! At the core of this concept lies imagination on natural e5ualit of people <and ine5ualit of their /personal rights1=, as ignoble and noble don;t differ in an aspectsB and if there are no differences between the ignoble and noble it is necessar to orient towards the nature of a individual!* Apart from the philosophical basis of the sophistic, at the core of which lies the aspiration to find universal natural norms, regulating human life! "he other philosophical tendenc setting the nature of human being as priorit on top of the order the nature of an individual! "he basis of this teaching is in the idea that state mainl e7ists for the support and satisfaction of the needs of an individual! In Socrates concept a citizen is subordinated to police! Socrates /develops a 0ind of paternalistic version of contractual relations between a citizen and state, according to which $omeland and #aws are higher and more valuable than father and mother, the are the supreme parents, instructors and authorities!1 C And unwritten and written b human beings godl laws have one and the same justice, which is not onl a dimension of law, but in essence is its self! Socrates related the supremac of rational and just laws with the police freedom-/ beautiful and e7cellent merit for both human being and a state1 <Dsenofot! %emories on Socrates! I>, >, '=! It was Socrates who attempted for the first time to define the essence of human being! $e was tormented b 5uestions of /the nature and ultimate realit of a human being, his essence1, and he asserts that human essence is his soul! /Soul1 is perceived b Socrates as our intellect, thin0ing activit and morall guided conduct! Socrates supported the principle of individual freedom at court b den ing his own guilt! AS !8! 2egel sa s, Socrates demonstrated heroism, who consciousl defined a new principle of soul-absolute right of an individual conscious for inner belief and decision! "han0s to such self-consciousness <consciousness of one;s self as a free and independent being= individual stands as a personalit and subject of freedom and rights before the other individuals and state! 2egel desribing Socrates writes as follows. /2reat personalit wants to be guilt and underta0es a great collision! So -hrist sacrificed himself with his individualit and what he had created remained for eternit !1 ) Socrates

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Ancient 2reece police. ideas, realit <>-I> cc (-= 4h? 4aper Saint 4etersburg, &99, p!&' $uman 6ights and #aw, %!I!Abdulla ev! Saint 4etersburg, '++4 p!&9 ) $egel 2!>! 3ssa s "! &+, %!, &99' p! ,C

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created moral and intellectual tradition feeding moral culture of 3urope until present times! %an provisions on e5ualit , justice, rights and law as e7pounded b Socrates were further developed b 4luto who asserted that /justice lies in ever bod should have his own and performed his own. <State, 499! A?=! In 4luto;s views justice presupposes /ade5uate measure1 certain e5ualit ! $e writes that /if people failed to follow the ade5uate measure, then the e5ual would become une5ual and1 <#aws, )*)a=! In ideal just countr political rights belong to onl citizens! "heir major wor0-maintain and compl with the state order! All the citizens have e5ual rights, though the principle of e5ualit 4luto e7plains from the point of view of Aristocrat! -onsidering the police organization, 4luto sa s about reall just laws! $e wrote /I see death in the end of the state not governed b law and placed under an bod ;s authorit ! ( contrast, where laws have supremac over rules and the are their slaves, I see safet of that state and endowment of all the good things, which ma be endowed on states b gods1 <#awsa )&* d=! According to 4luto, the #aw must place obligations rather than grant rights and all these obligations are centered around the maintaining unit ! #aw can;t be adopted for all the cases of life! 4hilosophers must rule not b laws but intellect! 4hilosophers don;t need laws or private propert ! /@hat is the use of private propert , when it is in their souls1-asserts 4luto! Dassirer does justl points out the interconnection between law and political freedom in his concept! "he scientist wrote that /laws are the onl true e7pressions of freedom! Such is the thoughts of 4luto about state and summar of his political wisdom!1 , ?eveloping Socrates thought that onl 0nower must rule, 4luto advances his project of ideal statehood as ruled b rulers-philosophers with no slaves in this ideal state! In his ethical insights Aristotle <9,4-9'' (-= the ideas of freedom, e5ualit and justice are further developed! At the core of Aristotle;s teaching stands the image of political nature of a man based on political justice and virtuous acts In his views, political justice is possible onl between free and e5ual persons! $e e7pounds the idea that it needs not slip off our attention that the deep rooted notion lies both in justice in general and political justice <rights=! "he latter ta0es place between people, belonging to one communit and having the goal of self-satisfaction and b that between the people just and e5ual, e5ual in wa of thin0ing or proportionalit and e5ualit <rights= but having certain justice called so with previous form! "he rights belong to those in respect with who there

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-assirer 3rnst! #ogos, ?i0e, Dosmos in der 3nrwic0lung! 2oteborg, &94&! S! ''

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e7ists a law defining their relationsB law presupposes crime, justice-distribution of truth and untruth1 <Aristotle! 3thics, >!&+=! Enli0e 4luto Aristotle comes forth as the supporter of an individual;s rights, private propert and famil ! In Aristotle;s opinion, communalit of propert I against the laws of nature, private propert corresponds to nature! $e wrote that /ever man is in itself more than a friend and must love himself in the first place1! In reasonable terms it is normal in Stagirit;s views! 4rivate propert is the result of self-love! It is a virtuous beginning, stimulus to wor0, production and enrichment! In reasonable term as Stagirit supposes it is normal! 4olice benefits in the same thin in the same degree as a citizen! It is during that state of things corresponding to general welfare when citizens are rich! -ommon propert b contrast against natural law! -ommon interest-nobod ;s interest! -ommonalit of propert doesn;t stimulate for production, it is hard to control, it leads to laziness, aspiration to benefit from the labor of others! "herefore, legislative authorit ought to recognize private propert as reasonable and virtuous beginning! Aristotle;s ideal is the private propert the fruits of which used for common interest! "his ideal was adopted b -hristianit , Islam and proved its practical significance! In Aristotle;s opinion, state <political order= and right are the means of communication between people! Judgments upon freedom and e5ualit have no bearing on slaves! 8or Aristotle slave-owning seemed something natural and inevitable! 4olice shall be governed b right and not human beings! Aristotle e7pounds the idea of natural right recognized elsewhere and not needing legislative formulation and conventional rights, i!e! in the norms established b people in the forms of laws and agreements! $e delineates the difference between the written and unwritten laws <or ordinar =! (oth rights <law= and various forms of state order shall correspond to the principle of justice and the idea of right! 8or proper organization of political order of societ <where citizens can feel safe and be happ =! Aristotle suggests to introduce the governing law! In the given case he means the law established b will basing on godl and reasonable beginnings! 6ational laws are such laws which correspond to political justice and rights $e wrote that /ever law in its basis presupposes some 0ind of right1 <Aristotle! 4olitics! &,',&,,&'** a,&9=! Aristotle doesn;t identif the right as an ideal concept, reflection of intellect and justice with conventional, handmade rights, i!e! law! $e sa s that ever law anticipates some 0ind of rights and that ruling b passing the rights is not law;s business In his view the law ma be just and unjust, and the imagination on the rights provide us with the criteria to assess it! Aristotle supposes that right is e5ual to justice! #awful and just ought

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to full overlap! "he goal of right and state <police=-communal welfare that is associated with justice! "he right as an important element of police regulates the relations between free and e5ual people and the relations of ruling and subordination! "he relationships between slave-owners and slaves is not the subject of rights! A state is /the creation of nature1 the product of natural development, at the base of which lies the needs of people! "he famous definition of human being as /political or social animal1 belongs to Aristotle, for police is the societ itself! "he essence of this definition lies in the fact that human being can life alone, he needs to maintain contacts with the others resembling him in unit with them! 4olice is the communication between free and e5ual people, having intellect and having the abilit for self-determination, managing their affairs! "he power in police includes free and e5ual citizens! Aristotle;s conclusions on politics, rights and legislation concern onl free citizesn, where human being is recognized as a part of the state! Aristotle notes that /the nature of a state stands before the nature of a famil and individual1 that /state b its nature, precedes individual1 <there &,&,&',&'*9 a,&C=! "his thesis on precedence of state before an individual ac0nowledged at later political teachings <6usso, 2egel= have the sense in Aristotles; teaching that the nature of human being and human communication reaches its highest goal in a state! 8urther development of the concept of individual freedom and mutual safet of people in police organization is related to the epoch of ellinism with the name of 3picur <94&-')+ (-=! 3picurs insights into socio-political order bear individual character! In his views, individual-independent participant of political and legal relationsB freedom and independence-result of conscious acts of a manB human freedom lies in his responsibilit for conscious choice of his lifest le! In the matters related to the interrelation of a human being and a state 3picur adopts such view that people define the conditions of their communications and lifest les consciousl basing on the results of their consciousness! 4eople consciousl sign contract <agreements= for ensuring mutual safet and justice! /Justice is itself is not something, though in communications between people elsewhere there is some agreement on not to cause harm or incur an harm! In general terms, justice is the same for all and in the fact that it does reall e7ist there is something beneficial in the relations between the people1! 9

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%aterialists of Ancient 2reece! %!, &9** p! '&)

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3picur thin0s that state is called upon to provide mutual safet and common justice! #aws are seen as public guarantee of freedoms, safet and autonom of an individual! According to the 3picur;s concept justice in light of its correlation with laws is a natural right with variable <depending on place, time and circumstances= content that is how the overall benefit provided b mutual communication is! In the correlation between natural rights and law the variable practical /needs in the mutual communication of human beings1 are the driving forces of natural rights and law as well as the sources of /natural imagination on justice1! As a result of under these changing with needs of communication of the imagination on just and unjust came ot be recognized jurisprudence! /3picurian contractual e7planation of a state and right, presupposes e5ualit , freedom and independence of the members of contractual communication and in essence is the historicall first philosophical-legal concept of liberalism and liberal individualism! "he important line of connection e7tends from the contractuallegal concept of 3picur to the ideas of social contract of the :ew 3ra1 &+ ( downfall of police and national formations under universalit of the whole social life patriotic feelings of nation in various countries became dull, and constant variabilit of life, unstable societ as a whole, wea0ened the interest for socio-political activit and brought about the definition of a individual! "hen 5uestion on the liberation of a man from state was a dominating issue! 4hilosoph concentrates the attention on the problem of an individual as a source of the happiness of an individual, nurtures indifference attitude towards the surrounding realit , prompting to see0 happiness out of the contact with the societ , in solitude, in his inner world! -risis and downfall of ancient 2ree0 police results in the reorientation of politico-legal teachings, emerged at the epoch of ellinism. valuable was not police, but a human being as a rational creature, regardless of hisFher position in societ , the primar virtues of whom is recognized to be freedom! @here freedom was perceived as a collective freedom of the citizens of police </freedom for1=, now freedom was viewed as independence-neither political, but still moral and spiritual <freedom from=! ( separating apart human being and citizen-wrote J! 6eale and ?! Antiser -there separatel emerged ethics and politics! Ald classic ethics, including Aristotle, too0 the path of identif ing human being and a citizen, and ethics was subordinated to politics! In the first time in the histor of ellinist ethics is structured as an independent discipline considering a human being as such in his singularit and as autonomousGhuman being became free b attaining his

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$uman 6ights and #aw! %!I! Abdulla ev p! '4

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self individualit !1&& "his had great significance for the creation of theor of human rights in the :ew 3ra in &)-&,th centuries! Ancient 2ree0 democrac died, ravaged b the struggle between stronger Athens police and its wea0er allies, between polices leaded b Sparta and Athens union, fight between propert owners and need within the democrac itself! (ut the rights of a citizen, creaed in Athens, especiall in the political sphere, mechanism of direct legislation, composition of their guarantees before abuse of freedom b a person entered the intellectual domain during the following epochs! "he theoretical bases of natural-legal ideas on the nature of a human being was substantiated b ancient 2ree0 and 6oman stoicists in their teachings on state and law <Henon, Sene0a, emperors %ar0 3urelius=! -onsidering the interrelation of an individual and state within the frame of a unified creation of universe, the stoicists assumed that human nature is part of overall nature and universe as a whole! $uman being must live in harmon with nature, i!e!, live honestl and virtuousl in accordance with intellect, natural <or common= law of universe! It also concerns states, and the laws adopted b them! /"herefore <the ultimate= goal-as taught b Dhrisip is living in harmon with nature and general nature, avoid doing an thing prohibited b law, and namel with right reasoning penetrating ever thingB it is inherent to Heus who was the creator and ruler of universe1!&' In his teaching on statehood and rights stoicists bases cosmic and political imaginations that all the human beings <be their nature and the laws of creation of universe as a whole= are the citizens of a single world state and that a human being is a citizen of universe! According to Seneca, state and laws are subordinated to natural rights! @e have to picture two states in our imaginations. first, which includes gods and peopleB in that our sights is not limited to this or that noo0 of the world, we measure the boundaries of our state b the movement of the SunB the other one is what is prescribed to us b accident! "his second ma be Athens or -arthagen or ma be connected with an other cit B it doesn;t concern all humans, but a certain group of them! "here are people who serve both big and small state at a timeB and those who serve onl big cities and those serving onl small ones1! &9 In the natural-legal concepts Seneca insists on the idea of spiritual freedom and e5ualit of all the people including slaves!
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6eale J!, Antiseri ?! @estern philosoph from the source to our da s! "! & Anti5ues Saint 4etersburg, &99) p!&)' Antholog of world philosoph ! "! &! 4!& p! 49+ Ibid! p! *+)

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"he same view is maintained b a stoicist %ar0 3urelius in his judgments on the interrelationships between a personalit and state, the role of laws in the social life! $e spo0e about /the state with the e5ual rights for all, managed in e5ualit and e5ualit of rights of all and 0ingdom granting freedom to its subordinates above all1!&4 :atural-legal insight of stoicists basing on cosmo-political imagination on the creation of the world had significant impact on the further development of natural-legal imaginations and first of all 4olibi ,- ceron, 6oman law ers, first -hristian thin0ers -apologetics <liter-/supporters1 from the 2ree0 word /apologi a1 I/support1= "he ancient 6omans viewed natural rights differentl ! In classic periods of 6oman rights - ceron 9&+C-49 (-=, which was under strong influence of stoicist philosoph considered that actual right is genuine intellect in harmon with nature! It is universal in application, invariable and eternal! "here e7ists one eternal and invariable law true for all the countries and all the times! "he basis of the moralit - ceron sought in /general consent of all the people1 <-onsensus gentium= and /fundamental notions1 <notions inatae=! It is estimated that during that period the concepts of natural rights <jus naturale= neared the concept of the rights of nations <jus gentium=! As 3mer de >attel wrote <in reference to - ceron= /6omans often confused the rights of nations with the rights of nature calling the rights of nations <jus gentium= natural rights, since it is applied b all the civilized nations, unified in states1! &* "he meaning of justice - ceron sees in that is1 present each its due and maintains e5ualit between them1 <- ceron! About a state! II, >II, &+=! $ere the matter is the legal e5ualit and not e5uation of propert status of people! Supporting the institute of propert , in refernce to soticist 4aneti - ceron asserts that the reason for the formatin of state is securit of propert ! In breach of propert rights - ceron saw violation of justice and right! Justice according to - ceron re5uires not causing an harm to others and not transgressing others ropert ! $e wrote /the primar re5uirement for justice is that nobod should harmed others unless prompted to it b injustice so that all avail of common propert as common propert as common and private propert as own propert <- ceron, about obligations! I, '+=! AS /common order1 state is called upon to maintain propert of all and establish rule of law! #aws have supremac both in the state affairs and in the relations of subordinates <- ceron! About the laws! III &)=!
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Ibid! @attel 3! 6ights of people, or principles of natural law, implemented to the behavior and issues of nations and souverenities &9C+! 4!&&

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6oman law as an independent secular legal science emerged at the beginning of III centur (-! 6oman law ers 5uite elaboratel wor0ed out man law institutes both theoretical and in its various spheres! Special place in this regard belongs to theoretical and practical elaborations of the problems of legal state of personalit in state in 6oman law! 4rominent 6oman law er Elpian wrote that /all are born independent b natural rights1 <Elpian! ?! &!&!4=! -els and other roman law ers noted that the rights has inherent 5ualities such as e5ualit and justice, that is just e5ualit is what characterizes rights! "he idea of such perception of right is seen to some e7tent in the definition of Elpian about justice and the re5uirements coming forth from the re5uirements of rights! /Justice is invariable and constant will of presenting each his due rights! 4rescription of rights in essence is as follows. "o live honestl not causing harm to others, giving ever one his due! Justice is consciousness of the god;s and human being;s affairs, science on justice and injustice <Elpian! ? &!&!&+=! Scientist notes that /this Elpianish definition deriving referring to preceding similar <Ancient 2ree0 and 6oman= philosophiclegal ideas and provisions, in essence, tal0s about basic principle of rights <not onl natural but also the right in general sense of the word=-e5ualit which anticipates and e7presses e5ual justice and fair e5ualit 1! &C In their practical activit the law ers aspired to follow this principle, i!e!, what contradicted the principle of rights not to recognize as having legal force! "he relationships between a citizen and state in 6oman republic were built upon this judicial reasoning! 6oman jurisprudence gave us the institute of rights that haven;t lost their theoretical and practical significance until our times, for e7ample, the institutes of subjective right, legal person as well as man other public and private rights! (ut /the brea0-up of aristocratic republic and assertion of empire underlined the period of independent civil development in 6ome itselfG!!iron rule <ordo=, created b new regime oppressed the civil population of 6ome and the independent, but the province population having une5ual rights in the same manner not mentioning the lower classesG political oppression was further complemented b socio-economic crisis called forth b the same grandiose process of consolidation of anti5ue world1B -hristianit as religious protest movement the main feature of which was belief in 2od-human who was called upon to share the sufferings of the nations, emerged namel under these conditions, in the conte7t of spiritual depression! /In it were joined in a single

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$uman 6ights and #aw! %!I!Abdulla ev! Saint 4etersburg, '++4, p!',

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<0inism,

form 3astern cults, movements of anti5ue idealistic philosoph stoicism, gnostism=, %essianism of Ancient Judea1! &)

2.

RIGHTS OF INDIVIDUALS IN THE RELIGIOUS TRADITIONS

a) Persona !"# !n C$r!s"!an "ra%!"!on o& 'or % o(" oo) -hristian tradition of perceiving ever personalit as an absolute value made major contribution to the development of the imaginations on human rights! 8irst christens preached the idea of e5ualit and freedom of people /before 2od1 irrespective of their ethic and state identit , social and propert statuses! Apostle 4aul proclaimed in the letter to 2alatians. /"here are neither Judea nor pagansB neither slave nor independentB and neither male nor femaleB for all of us are e5ual in Jesus -hrist1 <2al 9.',=! (ut it in no wa meant proclamation of social and legal e5ualit <-ol! 9.'' and 4.&=! "here appeared the notion of personalit for the first time in the conte7t of -hristian world outloo0, which can;t in its entiret belong to state, as it was created /in the image and semblance of 2od1 and Eniversal 2odl -onsciousness- #ogos is more than an thing reflected in the personal intellect and willpower of human being! Spiritual life of a person as such was separated from political life, and spiritual e7perience from activit for the sa0e of state! (esides, in the religious e7perience 2od might be opened as supreme freedom and creativeness inherent to human being1 "herefore, namel it was in the spiritual domain where human considered himself free from the state before 2od! In the -hristian teaching there were the reflections of human values with oppression of which people were faced with almost ever da , norms of moralit and justiceB / and thus in all the things as ou would have others treat ou, treat others in the same wa 1-sa s in the :ew-"estament <%atthew ).&'=! A part of famous %oses; commandments passed from Ald-"estament to :ew"estament <Second *. )-'&=, including. don;t steal, bring false testimonies, commit adulter and etc!, confirmed such natural rights as the rights for living, private propert and famil ! -hristianit advanced the idea of dualism of human nature on the one hand, human-2od;s creature, on the other-social creature, thus segregating the spiritual power from secular! "his idea- partition of spiritual life from secular,
&)

Ibid

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clerical power from secular power was primar in -hristianit , meaning avoidance of human being from being absorbed b state as it was characteristic of 2ree0-6oman tradition, and ac5uisitions b it the first integral right- the right for perfection and eternal life! @here Ald-"estament urged to certain acts or prevented them, :ew-"estament said /be1! /be as perfect as Jour $eavenl 8ather1! All the evangelic commandments tal0 about internal organization of heart, commandment of love which for the first time in the histor of humanit becomes superior over an thing! :otwithstanding this, creation of out-of-state unit of people-communit of believers- posed the problem of political obligations. should a man obe the instructions of power if the are unfairK "hough not infinitel , majorit of -hristians were inclined to submissiveness, as -hristians were subjected to cruel persecutions! "hus, division of power presupposed possibilit of resistance! $aving in view that the religious dogma hadn;t been elaborated b then, but the picture of first communities as ma be reasonabl judged b Apocal pses, characterizes best the democraticrevolutionar , rebellious spirit of divine John;s revelation <6evelations &,.C-)=, the members of first -hristian communities might even justif t rannical 0illings! %ajor orientation to tolerance would appear onl in apostolic commandments when there would be established the rules of interrelations with power <6omans &9. &-*=!&, In accordance with the institutionalization of the -hristian religion the church began to adapt to state, governed b the principle /there is no power without 2od1 3merged as persecuted no orthodo7 religion, -hristianit <in all circumstance in the @estern 3urope= graduall lost its democratic features! -hristian church drew near the state and began to persecute the members of other religions and dissenters 9heretics= in their conte7t! 8or man centuries -hristian doctrine dominated in the 3uropean scientific and socio-political thin0ing! ?uring the %edieval period man discoveries of 2ree0 and 6oman scientists, and brilliant wor0s in the fields of law and just state order were lost for long time! As a whole, -hristianit promoted humanization of political thin0ing absorbing it with the ideas of moral responsibilit ! 2ree0-6oman understanding of e5ualizing and distributing justice was enriched with the -hristian appeal to merc ! 4roclamations of e5ualit of all the people regardless of their ethnic identit and social status, respect to ph sical labor are justl related to -hristianit ! (ut at the same time there was certain negligence of worldl affairs and advance of the religious ideal of spiritual rescue to the foreground t pical for the new religion! /the major contribution of -hristianit to our civilization-as 8! 6ode wrote-is personalit concept!1 Anl religion with its idea 2od, the idea of e7alted and deepl personal 2od, who ta0es all the cares of
&,

Durbatov 2!#!, 8rolov 3!?!, 8ro anov I!J! -hristianit . Antics, (ezants, Ancient 6ussia! p! &+&

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each man, 0nows each b their names might produce the personalit concept! 8undamental assertion of (iblical anthropolog consists of the following. a man was created in the image of 2od! 3ach human being is the apparent image of unseen 2od! 3ver person is illuminated with 2odl Ariole! "herefore, each man is hol , is the bearer of absolute values, power and must never turn into a weapon in the hands of an person! 3ver person is uni5ue b nature and is bestowed upon absolute and integral merits! 3ach person must fulfill hisFher mission, sa his word, leave his trac0 behind during his short sta on the earth! 6espect and recognize him the rights to e7press his thoughts, accept his words, however modest it ma be-it means to respect the image of 2od, the bearer of which is human being! 8rom such perception of human being, this concept of personalit derives the present idea on human rights! It is true that it onl graduall established itself in the minds of human beings, though this meaning ta0es its source from the -hristian idea of a human being as a uni5ue personalit 1!&9 "he traged of -hristian teaching is that its ideas even recognized as state ideolog weren;t introduced in the practical management of societ and state affairs! As A! #erua-(ol e wrote1 -hristian idea has never been trul sovereign and ruler of the world! "he world as we 0now to be -hristian was ruled b other forces whether b 6oman dominion or con5uests and anarch of barbars, monarchies and bureaucratic centralization! :ever has the -hristian spirit been free and the ruler of the world! If all the evangelic grains could grow in entirel the 2ospel and -hristianit in the forms unli0e the present1 the ideas of freedom, e5ualit and brotherhood became socio-political realit onl in L>IIL>II centuries in the epoch of 3nlightenment! '+ "he special place in the histor of -hristianit in @estern 3urope belongs to prominent thin0er of late medieval period 8oma A0vins0 <&''C-&')4=, his teaching on human communal living! Aristotle;s philosoph had significant impact on 8oma;s world outloo0, which he tried to combine with religious-ethic concept1 According to him the primar cause of all, including human e7istence and acts-god! At the same time, human being is a sentient being that has free will at that he is the root of all the freedoms, and a man must define the freedom of his acts in the frame of godl order of the world! 8oma A0vins0 notes that e7istence of statehood, unification of people in political communities is the natural law, will of sentience! %an strives to unification, communication for the provision of best conditions of life, disclosure of his abilities! 8amilies, household for this is not enough! $uman
&9 '+

6ode 8! 6ole of -hristianit in 3uropean civilization ! $istor ! "raditions! -ulture! %! &999, p! 9' #erua-(ol e A! -hristianit and ?emocrac ! "ransl! from 8r! S! "roic0i ! Saint 4etersburg &9+C, p!&,

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interest are much broader! 8amil can;t afford to ensure safet , order, full satisfaction of material and moral needs, it needs societ ! It unifies all the people with different capabilities, occupations, which complement each other! -reation of a state-result of natural inclination to communal life, some 0ind of instinct, but it is predestined b the will of 2od and conditioned human sentience! 8oma A0vins0 doesn;t rule out the social contract as a means to create a state! "he goal of a state is certainl overall welfare both material and spiritual! According to 8oma A0vins0 , private propert is one of the elements of natural right and order, it is identified with the propert in the general sense of the word, i!e, ac5uisition of natural products b man! *) R!+$"s o& !n%!,!%(a s !n Is a"his is a ver important and valuable right which Islam has given to man as a human being! "he $ol Muran has laid down. N?o not let our hatred of a people incite ou to aggressionN <*.'= '&! NAnd do not let ill-will towards an fol0 incite ou so that ou swerve from dealing justl ! (e justB that is nearest to heedfulnessN <*.,=! Stressing this point the Muran again sa s. NJou who believe stand steadfast before 2od as witness for <truth and= fairpla N <4.&9*=! "his ma0es the point clear that %uslims have to be just not onl with ordinar human beings but even with their enemies! In other words, the justice to which Islam invites her followers is not limited onl to the citizens of their own countr , or the people of their own tribe, nation or race, or the %uslim communit as a whole, but it is meant for all the human beings of the world! %uslims therefore, cannot be unjust to an one! "heir permanent habit and character should be such that no man should ever fear injustice at their hands, and the should treat ever human being ever where with justice and fairness! Islam not onl recognizes absolute e5ualit between men irrespective of an distinction of color, race or nationalit , but ma0es it an important and significant principle, a realit ! "he Almight 2od has laid down in the $ol Muran. NA man0ind, we have created ou from a male and female!N In other words all human beings are brothers to one another! "he all are the descendants from one father and one mother! NAnd we set ou up as nations and tribes so that ou ma be able to recognize each otherN <49.&9=! "his means that the division of human beings into nations, races, groups and tribes is for the sa0e of distinction, so that people of one race or tribe ma meet and be ac5uainted with the people belonging to another race or tribe and cooperate with one another! "his division of the human race is neither meant for one nation to ta0e pride in its superiorit over others nor is it meant for one nation to treat another with contempt or disgrace, or regard them as a mean and degraded
'&

$oll Muran

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race and usurp their rights! NIndeed, the noblest among ou before 2od are the most heedful of ouN <49.&9=! In other words the superiorit of one man over another is onl on the basis of 2od-consciousness, purit of character and high morals, and not on the basis of color, race, language or nationalit , and even this superiorit based on piet and pure conduct does not justif that such people should pla lord or assume airs of superiorit over other human beings! Assuming airs of superiorit is in itself a reprehensible vice which no 2odfearing and pious man can ever dream of perpetrating! :or does the righteous have more privileged rights over others, because this runs counter to human e5ualit , which has been laid down in the beginning of this verse as a general principle! 8rom the moral point of view, goodness and virtue is in all cases better than vice and evil! "his has been e7emplified b the 4rophet in one of his sa ings thus. N:o Arab has an superiorit over a non-Arab, nor does a non-Arab have an superiorit over an Arab! :or does a white man have an superiorit over a blac0 man, or the blac0 man an superiorit over the white man! Jou are all the children of Adam, and Adam was created from cla N <al-(a ha5i and al-(azzaz=! In this manner Islam established e5ualit for the entire human race and struc0 at the ver root of all distinctions based on color, race, language or nationalit ! According to Islam, 2od has given man this right of e5ualit as a birthright! "herefore no man should be discriminated against on the ground of the color of his s0in, his place of birth, the race or the nation in which he was born! %alcolm L, the famous leader of African :egroes in America, who had launched a bitter struggle against the white people of America in order to win civil rights for his blac0 compatriots, when he went to perform the pilgrimage, and saw how the %uslims of Asia, Africa, 3urope, America and those of different races, languages and colors of s0in, were wearing one dress and were hurr ing towards 2odOs $ouse-the DaObah and offering pra ers standing in one row and there was no distinction of an 0ind between them, then he realized that this was the solution to the problem of color and race, and not what he had been tr ing to see0 or achieve in America so far! "oda , a number of non- %uslim thin0ers, who are free from blind prejudice, openl admit that no other religion or wa of life has solved this problem with the same degree of success with which Islam has done so! Islam has also laid down the principle that no citizen can be imprisoned unless his guilt has been proved in an open court! "o arrest a man onl on the basis of suspicion and to throw him into a prison without proper court proceedings and without providing him a reason- able opportunit to produce his defense is not permissible in Islam! It is related in the hadith that once the 4rophet was delivering a lecture in the mos5ue, when a man rose during the lecture and said. NA 4rophet of 2od, for what crime have m neighbors been arrestedKN "he

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4rophet heard the 5uestion and continued his speech! "he man rose once again and repeated the same 5uestion! "he 4rophet again did not answer and continued his speech! "he man rose for a third time and repeated the same 5uestion! "hen the 4rophet ordered that the manOs neighbors be released! "he reason wh the 4rophet had 0ept 5uiet when the 5uestion was repeated twice earlier was that the police officer was present in the mos5ue and if there were proper reasons for the arrest of the neighbors of this man, he would have got up to e7plain his position! Since the police officer gave no reasons for these arrests the 4rophet ordered that the arrested persons should be released! "he police officer was aware of the Islamic law and therefore he did not get up to sa . Nthe administration is aware of the charges against the arrested men, but the cannot be disclosed in public! If the 4rophet would in5uire about their guilt in camera I would enlighten him!N If the police officer had made such a statement, he would have been dis-missed then and there! "he fact that the police officer did not give an reasons for the arrests in the open court was sufficient reason for the 4rophet to give immediate orders for the release of the arrested men! "he injunction of the $ol Muran is ver clear on this point! N@hen- ever ou judge between people, ou should judge with <a sense of= justiceN <4.*,=! And the 4rophet has also been as0ed b 2od. NI have been ordered to dispense justice between ou!N "his was the reason wh the -aliph OEmar said. NIn Islam no one can be imprisoned e7cept in pursuance of justice!N "he words used here clearl indicate that justice means due process of law! @hat has been prohibited and condemned is that a man be arrested and imprisoned without proof of his guilt in an open court and without providing him an opportunit to defend himself against those charges! If the 2overnment suspects that a particular individual has committed a crime or he is li0el to commit an offence in the near future then the should give reasons for their suspicion before a court of law and the culprit or the suspect should be allowed to produce his defense in an open court, so that the court ma decide whether the suspicion against him is based on sound grounds or not and if there is good reason for suspicion, then he should be informed of how long he will be in preventive detention! "his decision should be ta0en under all circumstances in an open court, so that the public ma hear the charges brought b the government, as well as the defense made b the accused and see that the due process of law is being applied to him and he is not being victimized! "he correct method of dealing with such cases in Islam is e7emplified in the famous decision of the 4rophet which too0 place before the con5uest of %a00ah! "he 4rophet was ma0ing preparations for the attac0 on %a00ah, when one of his -ompanions, $atib ibn Abi (altaOah sent a letter through a woman to the authorities in %a00ah informing them about the impending attac0! "he 4rophet came to 0now of this through a ?ivine inspiration! $e ordered OAli and

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Huba r. N2o 5uic0l on the route to %a00ah, at such and such a place, ou will find a woman carr ing a letter! 6ecover the letter from her and bring it to me!N So the went and found the woman e7actl where the 4rophet had said! "he recovered the letter from her and brought it to the 4rophet! "his was indeed a clear case of treacher ! "o inform the enem about a secret of an arm and that too at the time of a war is a ver serious offence tantamount to treacher ! In fact one cannot thin0 of a more serious crime during war than giving out a militar secret to oneOs enem ! @hat could have been a more suitable case for a secret hearingB a militar secret had been betra ed and common sense demanded that he should be tried in camera! (ut the 4rophet summoned $atib to the open court of the %os5ue of the 4rophet and in the presence of hundreds of people as0ed him to e7plain his position with regard to his letter addressed to the leaders of Mura sh which had been intercepted on its wa ! "he accused said. NA 2odOs %essenger <ma 2odOs blessings be on ou= I have not revolted against Islam, nor have I done this with the intention of betra ing a militar secret! "he truth of the matter is that m wife and children are living in %a00ah and I do not have m tribe to protect them there! I had written this letter so that the leaders of Mura sh ma be indebted to me and ma protect m wife and children out of gratitude!N OEmar rose and respect- full submitted. NA 4rophet, please permit me to put this traitor to the sword!N "he 4rophet replied. N$e is one of those people who had participated in the (attle of (adr, and the e7planation he has advanced in his defence would seem to be correct!N #et us loo0 at this decision of the 4rophet in perspective! It was a clear case of treacher and betra al of militar secrets! (ut the 4rophet ac5uitted $atib on two counts! 8irstl , that his past records were ver clean and showed that he could not have betra ed the cause of Islam, since on the occasion of the (attle of (adr when there were heav odds against the %uslims, he had ris0ed his life for them! Secondl , his famil was in fact in danger at %a00ah! "herefore, if he had shown some human wea0ness for his children and written this letter, then this punishment was 5uite sufficient for him that his secret offence was divulged in public and he had been disgraced and humiliated in the e es of the believers! 2od has referred to this offence of $atib in the $ol Muran but did not propose an punishment for him e7cept rebu0e and admonition! "he attitude and activities of the Dharijis in the da s of the -aliph OAli are well0nown to the students of %uslim histor ! "he used to abuse the -aliph openl , and threaten him with murder! (ut whenever the were arrested for these offences, OAli would set them free and tell his officers NAs long as the do not actuall perpetrate offences against the State, the mere use of abusive language or the threat of use of force are not such offences for which the can be imprisoned!N "he imam Abu $anifah has recorded the following sa ing of the -aliph OAli <A=. NAs long as the do not set out on armed rebellion, the -aliph

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of the 8aithful will not interfere with them!N An another occasion OAli was delivering a lecture in the mos5ue when the Dharijis raised their special slogan there! OAli said. N@e will not den ou the right to come to the mos5ues to worship 2od, nor will we stop to give our share from the wealth of the State, as long as ou are with us <and support us in our wars with the unbelievers= and we shall never ta0e militar action against ou as long as ou do not fight with us!N Ane can visualize the opposition which OAli was facingB more violent and vituperative opposition cannot even be imagined in a present-da democratic StateB but the freedom that he had allowed to the opposi- tion was such that no government has ever been able to give to its opposition! $e did not arrest even those who threatened him with murder nor did he imprison them! Amongst the rights that Islam has conferred on human beings is the right to protest against governmentOs t rann ! 6eferring to it the Muran sa s. N2od does not love evil tal0 in public unless it is b some- one who has been injured thereb N <4.&4,=! "his means that 2od strongl disapproves of abusive language or strong words of condemna- tion, but the person who has been the victim of injustice or t rann , 2od gives him the right to openl protest against the injur that has been done to him! "his right is not limited onl to individuals! "he words of the verse are general! "herefore if an individual or a group of people or a part usurps power, and after assuming the reins of authorit begins to t rannize individuals or groups of men or the entire population of the countr , then to raise the voice of protest against it openl is the 2od-given right of man and no one has the authorit to usurp or den this right! If an one tries to usurp this right of citizens then he rebels against 2od! "he talisman of Section &444 ma protect such a t rant in this world, but it cannot save him from the hell-fire in the $ereafter! Islam gives its citizens the right to absolute and complete e5ualit in the e es of the law! As far as the %uslims are concerned, there are clear instructions in the $ol Muran and hadith that in their rights and obligations the are all e5ual. N"he believers are brothers <to each other=N <49.&+=! NIf the <disbelievers= repent and 0eep up pra er and pa the Ipoor-due, the are our brothers in faithN <9.&&=! "he 4rophet has said that. N"he life and blood of %uslims are e5uall preciousN <Abu ?awudB Ibn %ajjah=! In another hadith he has said. N"he protection given b all %uslims is e5ual! 3ven an ordinar man of them can grant protection to an manN <al-(u0hariB %uslimB Abu ?awud=! In another more detailed "radition of the 4rophet, it has been said that those who accept the Aneness of 2od, believe in the 4rophet- hood of $is %essenger, give up primitive prejudices and join the %uslim communit and brotherhood, Nthen the have the same rights and obligations as other %uslims haveN <al-(u0hariB al-:isaOi=! "hus there is absolute e5ualit between the new converts to Islam and the old followers of the 8aith!

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"his religious brotherhood and the uniformit of their rights and obligations is the foundation of e5ualit in Islamic societ , in which the rights and obligations of an person are neither greater nor lesser in an wa than the rights and obligations of other people! As far as the non- %uslim citizens of the Islamic State are concerned, the rule of Islamic ShariOah <law= about them has been ver well e7pressed b the -aliph OAli in these words. N"he have accepted our protection onl because their lives ma be li0e our lives and their properties li0e our propertiesN <Abu ?awud=! In other words, their <of the dhimmis= lives and properties are as sacred as the lives and properties of the %uslims! ?iscrimination of people into different classes was one of the greatest crimes that, according to the Muran, 4haraoh used to indulge in. N$e had divided his people into different classes,N !!! NAnd he suppressed one group of them <at the cost of others=N <',.4=! Islam clearl insists and demands that all officials of the Islamic State, whether he be the head or an ordinar emplo ee, are e5ual in the e es of the law! :one of them is above the law or can claim immunit ! 3ven an ordinar citizen in Islam has the right to put forward a claim or file a legal complaint against the highest e7ecutive of the countr ! "he -aliph OEmar said, NI have m self seen the 4rophet, ma 2odOs blessings be on him, ta0ing revenge against himself <penalizing himself for some shortcoming or failing=!N An the occasion of the (attle of (adr, when the 4rophet was straightening the rows of the %uslim arm he hit the bell of a soldier in an attempt to push him bac0 in line! "he soldier complained NA 4rophet, ou have hurt me with our stic0!N "he 4rophet immediatel bared his bell and said. NI am ver sorr , ou can revenge b doing the same to me!N "he soldier came forward and 0issed the abdomen of the 4rophet and said that this was all that he wanted! A woman belonging to a high and noble famil was arrested in connection with a theft! "he case was brought to the 4rophet, and it was recommended that she ma be spared the punishment of theft! "he 4rophet replied. N"he nations that lived before ou were destro ed b 2od because the punished the common men for their offences and let their dignitaries go unpunished for their crimesB I swear b $im <2od= who holds m life in $is hand that even if 8atimah, the daughter of %uhammad, has committed this crime then I would have amputated her hand!N ?uring the caliphate of OEmar, %uhammad the son of OAmr ibn al-OAs the 2overnor of 3g pt, whipped an 3g ptian! "he 3g ptian went to %edina and lodged his complaint with the 6ighteous -aliph, who immediatel summoned the 2overnor and his son to %edina! @hen the appeared before him in %edina, the -aliph handed a whip to the 3g ptian complainant and as0ed him to whip the son of the 2overnor in his presence! After ta0ing his revenge when the 3g ptian was about to hand over the whip to OEmar, he said to the 3g ptian. N2ive one stro0e of the whip to the $onourable 2overnor as

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well! $is son would certainl have not beaten ou were it not for the false pride that he had in his fatherOs high office!N "he plaintiff submitted. N"he person who had beaten me, I have alread avenged m self on him!N OEmar said. N( 2od, if ou had beaten him <the 2overnor= I would not have chec0ed ou from doing so! Jou have spared him of our own free will!N "hen he <OEmar= angril turned to OAmr ibn al-OAs and said. NA OAmr, when did ou start to enslave the people, though the were born free of their mothersKN @hen the Islamic State was flourishing in its pristine glor and splendour, the common people could e5uall lodge complaints against the caliph of the time in the court and the caliph had to appear before the 5adi to answer the charges! And if the caliph had an complaint against an citizen, he could not use his administrative powers and authorit to set the matter right, but had to refer the case to the court of law for proper adjudication!

.. HUMAN RIGHTS AND FREEDOMS OF A PERSON IN THE MIDDLE AGES ?espite the complete swa of scholastics and theolog in the political consciousness, middle age politico-legal thought continued to ma0e some contribution to the development of human rights! "he proponents of so-called humanistic legal school e7pounded the idea of general freedom, e5ualit of all before the law, criticized the feudal dependence as unlawful phenomenon! So, (omanoir asserted /each person is free1! In his legal provisions and settings he aspired to realize this idea! ?uring the %edieval ages rights were seen as privileges granted b senior >assals! 8eudalism on the one hand and church with its religious intolerance on the other did a lot to obstruct all the paths of human aspirations to political freedom and freedom of conscience! "here was no 5uestion as to the rights of wide la ers of communit at all! In the codes on the rights for political and civil struggles, freedom of faith was not universal and recognized onl for one la er of societ -gentr ! '' "he most famous of such codes is the 2reat chart of liberties <&'&*=! Its adoption was the political result of fights unleashed in 3ngland between the monarchs and anti-0ing coalition, headed b barons and supreme clerg displeased with e7cessive ro al ta7es! "his document proclaimed constitutional principle based on which the 0ing could impose ta7es onl with the agreement of ta7pa ers-the principle, the conse5uent implementation of which brought
''

"rosh0in J!>! $uman rights! &99)! p! &+

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about the organization of national governments followed b the provision of political struggle! In the same place the principle of civil freedom was fi7ed in legislation! It was declared in Article 99 of 2reat chart. /no an free man shall be arrested or put in custod , deprived of propert , outlawed or banished or otherwise made destitute, and we won;t go against him unless as specified in the law!1'9 So it was ac0nowledged that individual is entitled to free life and ma be subjected to an punishment not otherwise as the court ruling! -haracterizing this document, ?!%! 4etrushev noted that this -harter ensures freedom from arbitrariness of power of all /free person1 <liber homo= and guarantees him in case of the rime committed b him lawful sentence b piers under the countr laws!'4 "he chart also fi7ed the freedom of church, the idea of lawfulness, freedom of movement, anticipated creation of an organization that might secure integrit of all the subordinates <page C&=! -ommittee consisting of '* barons, who were recognized the right of raise /the communit of the whole land1 against the 0ing in the event of violation b him or his agents! "he main significance of 2reat chart lies in the inclusion of provisions on the supremac of law over the 0ing! #ater Status on the imposition of ta7es <&'9*= was proclaimed the principle of establishment of ta7es b 0ing onl upon the agreement b ta7pa ers where it said that / no ta7 or benefit shall be levied unless so agreed b archbishops, bishops and other prelates, earls, barons, du0es, cit population and other free persons in our 0ingdom1!'* Adoption in 2reat chart of liberties and the Status on the imposition was a major step in the sphere of human rights! "he documents in 3nglish-spea0ing countries were based on these acts and the modern concept of human freedom in man aspects b far stems from this! 3ver thing that was achieved b 3nglish jurisprudence since the time of the confirmation of 2reat chart is the development of its basic provisions! "he establishment of parliamentar institution characterized &9th centur in 3ngland! 4arliament emerged as a result of transmission of power to the hands of barons in &'C4! In &'C* there was convened an Assembl with a view to reinforce the alliance between the various la ers of population in 3ngland that formed the 3nglish parliament! "he parliament graduall turned into a supreme legislative authorit of the countr ! At the same period the came to understand
'9 '4

%onuments of $istor of 3ngland LI-LIII cc! %! &99C p! &+C Ibid, p!', '* Ibid, p! '',

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Saadat :ovruzova

the necessit of establishing an independent legislative power in 3nglish societ , without which no personal freedoms could be guaranteed! "he main principle of such judicial power is nobod ma be deprived from freedom and propert without the court order!'C ?uring the epoch of 6enaissance and 6eformation belongs the period of formation of legal world outloo0! After man centuries of dominance of theolog and religious ideal at the core of interest became a human being and the imagination about him penetrate the principles of humanism concentrating on the needs, interests and nature of personalit ! Individual is graduall liberated from the grips of church and state dictate! "he individualism emerged namel at that time as the assertion of independent value of human being absorbed with various t pes of religious and secular corporations! In the fight with middle age conservative-protective ideolog there appeared a s stem of 5ualitativel new socio-philosophic visions, at the core of which stood the meaning on the necessit to assert self-estimation of a personalit , recognition of dignit and autonom of an individual, provision of conditions for free human development, guarantee of ever one the possibilit to achieve happiness with own forces! Such humanistic set of mind prompted to refer to anti5uit , find in them e7amples and arguments which might confirm their conviction of own constructions! 4olitico- legal rationale of the 6enaissance and 6eformation epochs re5uires to restore the thesis on the 5ualit in the relationships between believers as well as recognition of e5ualit as a norm for civil relationships too! In their criti5ue on the theological politico-legal thoughts, interrelationships between a personalit and state the thin0ers of that period began to appeal to natural rights of human being and found the necessit of establishing new socio-political order that would include new interrelationships between the state and an individual based on human rights! "he interpreted natural rights as the ascertainment of intellect, source of rights and freedoms of an individual, his independence from church ideolog and arbitrariness of secular powers! Ac0nowledgement of natural e5ualit between al the people brought about the ac0nowledgement of the fact that each of them has certain rights and freedoms! "his same ideas of rights and freedoms of an individual are reasserted in a number of disciplines on the state sovereignt ! Along with the 5uestions of independence of the secular power from church and partition from each other, and centralization of the power on the scale of the whole countr and etc!, this thematic included such a vital aspect as interrelation between the state and a personalit , bases and

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Judovs0a a A! J! 3volution of #aw in 3urope and America <L>II-LIL cc!=! &99C, p!&*

$istorical ?evelopment of the "heor of $uman 6ights

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boundaries of state intervention in the life of an individual, obligation soft state power on the provision of rights and freedoms of a personalit and etc! 4olitico-legal relationships as viewed from thin0ers and philosophers of 6enaissance and 6eformation epochs were began to be built on rationalism and empirism! It was assumed that human fate is predestined b his gentilit , origin, title, identit with a certain confession and e7clusivel with his personal accomplishments, demonstrated activit , nobilit in acts and thoughts! Ane of the main merits of an individual, that is citizenship, unbiassed service for common welfare gained in significance! In its turn, common welfare was associated with the republic, state basing on principles of e5ualit <in the sense of li5uidation of class privileges and limitations= and justice! "he guarantees and justice, securit of freedom of a personalit were ta0en up in the issuance of and compliance with laws, the content of which meets human nature! Ane of the most outstanding figures in the struglle for human rights and limitation of ro al power in 3nglish political and legal though of L>, the head judge of the 6o al bench under $enr , the author of treatise /praise to 3nglish laws1, /:ature of nnatural laws1 and / 6uling 3ngland1 was john 8ortes5ue <died in &4)C=! In his opinion, positive law bses on natural right, defining the order of all the creation and ahving supremac over ordinances! $e supported foma A0vins0 who stated that /A 0ing is to serve 0ingdom and not 0ingdom a 0ing1! In his wor0 /6uling 3ngland1 J! 8ortes5ue notes that ro al power must be limited with rights guaranteed for citizens b laws and 3ngland belongs to this form of administration!') "hus, J! 8ortes5ue saw in rights human freedom! "he idea of freedom and legal e5ualit of all the communit members as a basis of their civil merits, political activit and participation in common state affairs are illustrated in the wor0s of famous 8lorence thin0er of 6enaissance era was :! %achiavelli <&4C9-&*')= <who is more often and unfairl deemed to be just a philosopher of political intri5ues=! $is contemporar and opponent "! Dampanell also denied scholasticism, e5ualit of people and primate of human intellect <in his wor0s called /4hilosoph confirmed b feelings1, /-it of Sun1 and poems=, though on other ideologic bases as well! REFERENCES AND NOTES
&! '! -assirer 3rnst! #ogos, ?i0e, Dosmos in der 3nrwic0lung! 2oteborg, &94&! S! '' 6eale J!, Antiseri ?! @estern philosoph from the source to our da s! "! & Anti5ues S4b, &99)

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$istor of (ourgeois constitutionalism L>II-L>III cc!, %! &9,9 p! C,

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Saadat :ovruzova
@attel 3! 6ights of people, or principles of natural law, implemented to the behavior and issues of nations and sovereigns! %!, &9C+! 6ode 8! 6ole of -hristianit in 3uropean civilization! $istor ! "raditions! -ulture! %!, &999 #erua-(ol e A! -hristianit and ?emocrac ! "ransl! from 8r! S! "roic0i ! S4b!, &9+C "he :ew 3nc clopedia. %icropaedia! #!, &9,, >ol!C ?onnelli ?!, $award 6!, /$uman rights in modern world1 ESA!, &99& n!4'& %onuments of $istor of 3ngland LI-LIII cc! %! &99C -hristoph J!%! Safferling! "owards an International -riminal 4rocedure, A7ford '++9 $oll Muran $oll (ible PQRSTTUVW X!Y!, Z[\UWU ]VT^WV_U ` aU_^bc, d[Q!, '++4 e^T_^WU d!e! Zf\VWbVg\V]Vh_`i j^T`h. `RV`, \VUTkb^hlk <>- I> WW! R^ b!m!=. PWl^\Vn! _UbR! R`h! d[Q! &99, oS\QUl^W p!q!, r\^T^W s!f!, r\^tb^W Y!u!, Zv\`hl`UbhlW^. Pbl`]b^hlk, e`aUbl`t, f\VWbtt wShkc q!, &99, x\^y_`b z!e! Z[\UWU ]VT^WV_Uc %!, &99)! zR^Wh_Ut P!u! ZsW^T{|`t j\UWU W g^hSRU\hlWU} ~W\^j• ` P€V\`_`c! <L>II-LIL cc!=! %!&99C pVgVTk p!e!r! d^]!. "! &+, %!, &99' Yhl^\`t QS\•SUab^g^ _^bhl`lS|`^bUT`a€U L>II-L>III cc!, %! &9,9 XUlV\`UT`hl• f\VWbVi p\V|`` X!, &9** Pbl^T^g`t €`\^W^i n`T^h^n`` %! &9C9! "!&! 4!&!

Summary HISTORICAL DEVELOPMENT OF THE THEORY OF HUMAN RIGHTS Saadat Novruzova (Khazar University, Baku, Azerbaijan)
"he /$istorical ?evelopment of the theor of $uman 6ights1 article deals with the creation and development of the theories of human rights in different periods! "he article also spea0s about the protection human rights in Islam and -hristian religions in ancient and middle ages periods! "he human rights and freedom theor placed special emphasis in the moral cultural histor of humanit ! "he article described how human rights and freedom conve a man sided character and emphasize fundamental public values! -ertainl human rights is a manifestation of social histor and it was long dela ed in the cultural histor of humanit for perceiving the social values of human rights!

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