The technologies in the 20th and 21st Century, must respect human rights. But human rights correspond to a conception of beings and things that took a long time to build.
1.1. Constitutional texts
These texts have not always been an essential part of international or national law, far from it. For a while, only the United Kingdom was interested in protecting a suspected offender against arbitrary detention, notably with habeas corpus1. Human rights correspond to an old philosophical aspiration but they only entered the political sphere in the 18th Century, with texts of constitutional value, attached to the States, the French Declaration of Human Rights and the Citizen, the US constitution and its amendments.
I) The Declaration of the Rights of Man and of the Citizen
This emerged as part of the philosophy of the Enlightenment, encompassing a number of philosophical works, notably by Rousseau and Diderot, such as the Encyclopedia.
The rights declared are rather numerous. The first2 rights are freedom and equality, inseparable in nature. These are freedom and equality as rights, not as achieved concepts. However, freedom and equality as rights are the foundation for many other rights, listed in part in the Declaration of the Rights of Man and of the Citizen, and then later in future texts pertaining to civil law
A) Freedom: freedom is defined in a very broad manner. Everything that is not prohibited by the law is considered to be a freedom. Article 5 states: âThe law can only protect against actions that are detrimental to societyâ. All actions that are not made illegal in the law are included in the vast domain of freedom.
The Declaration of the Rights of Man and of the Citizen focuses particularly on the freedom of opinion3 and the freedom of expression. The freedom of opinion encompasses all ideas, âeven religiousâ. This notion of âeven religiousâ refers to the importance of religious opinions in the society of the 18th Century. The principle of royalty was founded on religion and its church (Catholic), and later its churches (since the Edict of Nantes). The Kingâs legitimacy arises largely from his crowning, a religious ceremony. However, in the 18th Century, a number of men were able to separate themselves from the influence of religious opinions, either by freeing themselves from the concept of God (atheists remained a minority, however, who rarely expressed their beliefs; Libertines, such as Voltaire and DâHolback, were rather discrete on the matter of their atheism or their agnosticism) or by adopting a faith that was separate from the ecclesiastic institutions4. The constituents made progress by separating the world of politics from religion. Consequently, the revolutionary governments went after refractory priests refusing to swear allegiance as required. Robespierre, however, attempted to impose a new spiritualist institution by proclaiming a worship of the Supreme Being. Later the Empire re-established the influence of the churches. However, the work of the Declaration has survived, providing a foundation for the legal basis of freedom of opinion.
Freedom of opinion is not sufficient. It must continue to include freedom of expression5. This corresponds to the freedom to express ideas and opinions. Citizens attempt to share their ideas with other citizens, and this freedom of exchange is carried out through a number of media: speech (in later centuries through radio or television), writing (pamphlets, books, newspapers) and, since no one at the time could envisage electronic writing, social media, Internet and print. In this way, freedom of expression results in the freedom of the press through the right to print diverging or converging ideas. The first years of the revolution were marked by a huge rise in the freedom of the press, with a large diversity of opinions, marked by an underlying freedom of tone.
The power to detain, a privilege of public orders forces, is greatly limited. The law anticipates offenses, and the curbing of freedom caused by an arrest is anticipated by the lawmaker: âNo man can be accused, arrested or detained unless in the manners prescribed by the lawâ6. The presumption of innocence is stated here7: âAny man is presumed innocent until proven guilty, and if it is deemed necessary to arrest him, any severity that is not needed to accomplish this shall be duly reprimanded by the lawâ.
The last freedom joins the first, proclaimed as solemnly8: this is the right to property, presented as âinalienable and sacredâ. The right to property belongs to both civil law and economic law.
B) Property: exemptions are provided. Limitations to civil rights are envisaged by the law. Even property can be suspended âwhen public necessity, legally determined, requires it, and in exchange for a fair compensation beforehandâ.
The Declaration of the Rights of Man and of the Citizen is actually included in the constitutional texts of the Fifth French Republic in the same way as the Preambule de la Constitution of 1946, and the Chartre de lâEnvironnement. They participate in the constitutional control process carried out by the constitutional council, either beforehand (referral to the Constitutional Council before the passing of a law) or afterward, since the 2008 reform with the question of constitutional priority.
Thus, the constitutional council came to the decision that certain nationalizations planned by the Pierre Mauroy government went against article 17 and violated inalienable and sacred principles of property.
The question of constitutional priority has several times looked into the correct application of freedom of opinion and freedom of expression. As a result, labor unions are allowed to distribute tracts without permission from the employer. This is not the case for electronic tracts, which require approval from the employer, unless an overall agreement is found. The priority issue of constitutionality (QCP) on September 27, 20139 declared that the Internet contains various networks that a company needs to monitor to some extent, and therefore the employerâs authorization could not be considered an impingement of the freedom of expression as claimed by the CFTC.
Beyond the French constitution, the Declaration of the Rights of Man and of the Citizen has been a source of inspiration for all those reflecting on human rights in an international context.
II) The other constitution/reference is the American Constitution of September 17, 1787. The first 10 amendments make up the Bill of Rights; they were put forward by the First Congress on September 25, 1789 and ratified on December 15, 1791. The Declaration of the Rights of Man and of the Citizen and the Bill of Rights appeared at the same time. However, while the Declaration of the Rights of Man and of the Citizen lists the rights of French citizens, the Bill of Rights does not list the rights of citizens, but instead lists actions that the American Federal State cannot carry out on its citizens.
A) The first amendment of the constitution covers freedoms: freedom of opinion, freedom of expression and freedom of assembly. Regarding civil freedoms, the first amendment stresses the importance of the freedom to practice oneâs religion. The constituents are very attached to religious convictions and faith, even though the first Americans â the descendants of Protestant colonists â were supporters of the freedom to choose religion. The American constitution contains many references to religion, and the President of the United States still swears an oath on the Bible when they take up their duties. Furthermore, in court citizens also swear an oath on the Bible. However, this freedom of opinion and expression is not limited to religion. All opinions can be held by American citizens, and they cannot be worried about showing their attachment to one or the other. This is why the freedom of the press cannot be limited. On this point, there is a dichotomy between the concept of the freedom of man and the citizen and the concept of freedom in the first amendment to the Americ...
