Chen Youwu*

 

Abstract: The basic categories of the Chinese socialist human rights theory, or the socialist human rights theory with Chinese characteristics, consist of four elements, namely, human rights history, human rights concept, human rights attributes and human rights protection. The category of the human rights history covers ancient ideas of human rights, classical human rights theory, Marxist human rights theory and the adaption of Marxism to the Chinese model. The category of human rights concept covers the subjects, content, forms, classification, origin and essence of human rights. The category of human rights attributes addresses universality and particularity of human rights, harmony and confrontation of human rights, political nature and non-political nature of human rights, indivisibility of human rights and duties, and conditioning of state power by human rights. The category of human rights protection addresses the issues of human rights and state sovereignty, human rights and democracy, human rights and law-based governance, human rights and property, human rights duty holders, and human rights education.

 

Keywords: socialism with Chinese characteristics   human rights    human rights theory category

 

China has made great progress in politics, economy, system, culture and human rights work in the 30-plus years of opening-up. China’s human rights theory should also keep pace with the times to reflect such changes and progress without delay and undergo innovation. After the release of two editions of the National Human Rights Action Plan, in particular, what kind of human rights theory do we need to adopt to educate the general public and average students? It’s a real question. Therefore, we need to set up the system of Chinese socialist human rights theory, based on which, we strive for a louder international voice on human rights issues. To understand the Chinese socialist human rights theory, it is critical to clarify the following basic categories and the relevant concepts.[page]

 

 

 

To some extent, all the human rights theories ultimately originate from the ancient ideas of human rights. The formation of ancient ideas of human rights is closely connected with traditional natural law. When self-consciousness and the idea of equality are developed in natural law, the concept of human rights is formed gradually. Self-consciousness represents one’s existence and independent qualities, while the idea of equality reflects the equal social relationships of people. In this sense, self-consciousness and the awareness of equality are indispensable, and are united in traditional natural law of the West. Self-consciousness is the natural source of human rights concept, demonstrating individual’s natural existence and the natural essence of human rights. Equality is the social source of human rights concept, demonstrating individual’s social existence and the social essence of human rights. Either self-consciousness or equality alone creates human rights concept. Self-consciousness only presents the independence of human existence, but not interpersonal relationships. It is impossible to have any human rights in slavery and dependent relationships. Human rights concept must be based on interpersonal equality. Integrated and penetrated into each other during the evolution of western natural law, self-consciousness and the awareness of equality have become the ideological kernel of human rights concept.

 

2. Classical human rights theory
 

The classical human rights theory is relatively complete and systematic, mainly refers to the theory system made up of western human rights ideas and concept during 17-18th centuries. It is an indirect source of the Chinese Socialist Human Rights Theory. It not only carries forward the ancient ideas of human rights, but also lays a foundation for modern human rights theory, exerting great influence on the structure of human rights theory of various countries including China. It is the primary doctrine of classical human rights theory that individuals are the only subjects of human rights. That is to say, the classical human rights theory is about individual rights. It is believed that human rights refer to civil rights and political rights with liberty as their core. There were transcendentalism and empiricism in terms of the origin of human rights. The theory stresses the confrontation of human rights, and deems that law is made to protect human rights. The classical human rights theory has set up a tradition of human rights, exerting important influence on our concepts, legislation and social progress. The United States Declaration of Independence (1776) only protects the liberty and equality of individuals without any economic or social concern. The aim of the French Declaration of the Rights of Man and of the Citizen (1789) is also confined to recognize citizen’s identity and political rights.[page]

 

 

The Marxist human rights ideas are one of the most important part in its theory system, and “are real and thorough human rights ideas.”¹ The Marxist human rights theory contains systematic and theoretical ideas of human rights. After its establishment by Karl Marx and Friedrich Engels, the theory system was further promoted by Lenin and the old generation of China’s proletarian revolutionaries, and has become a complete and scientific system after one and a half centuries’ development from practice to theory and from theory to practice.² The theory system is based on the critical inheritance of classical human rights theory and Utopian socialist human rights ideas, and is the direct source of the Chinese socialist human rights theory. The Marxist human rights theory is directly related to the ideas and practice of Marx and Engels, which is reflected in three aspects as follows: First, the evolution of early-stage human rights ideas of Marx and Engels prepares for the formation of the Marxist human rights theory. Second, the criticism of Marx and Engels on bourgeois human rights concept, especially on natural rights, is important for the formation of the Marxist human rights theory. Third, the historical materialism is the theoretical basis for the formation of the Marxist human rights theory. The three aspects are consistent.³ After Marx’s death, Engels further explained the Marxist human rights theory when fighting with different groups. Lenin, Mao Zedong and Deng Xiaoping also enriched and developed the Marxist human rights theory.

 

Based on historical materialism, the Marxist human rights theory stresses the internal connection of human rights and economic and cultural conditions, and upholds class guidelines with the focus on both individual and collective human rights. It reveals the basic connotation of human rights, and breaks the old individual-centered pattern of bourgeois.⁴ Moreover, the Marxist human rights theory is closely connected with human rights practice, and talks about the emancipation of mankind, which is the most prominent difference from other human rights theories. 

 

 

The Marxist human rights theory is applied to China taking into account of China’s reality. The Marxist human rights theory and China’s reality are integrated into each other in the process of adapting Marxism to the Chinese model. The Chinese Communist Party plays a leading role in this adaption process. When leading China’s democratic revolution and socialist construction, Mao Zedong integrated Marxism with the concrete practice in China and adapted it to Chinese conditions. He established Maoism, carrying forward Marxism-Leninism and its human rights theory during China’s law formulation for and practice of human rights. As the general designer of China’s reform and opening-up, Deng Xiaoping applied the general theories of Marxism to China’s reality and carried forward Maoism in leading China’s economic development and opening-up. He proposed the Chinese socialism theory with human rights theory as an important part. In 2004, “the state respects and safeguards human rights” is added to the Constitution, indicating a great progress in adapting Marxism human rights theory to the Chinese model.[page]

 

 

 

Human rights subject is important in a human rights theory, as all human rights theories are established on the assumption of human rights subject.⁵ Since early 1990s, many scholars in the legal circle joined the debate about the subject of Chinese socialist human rights, and have given three major ideas. First, only individuals are the subject of human rights. Some scholars even said that “individuals are the only subject of human rights.”⁶ Some pointed out that individuals are the major subject of human rights. They are “personalized and directly existing persons who have feelings”, “persons engaging in actual activities” and “developing persons”.⁷ Second, there are three categories of human rights subject: individuals, legal persons and collective. For example, some put forward that the subject extension of human rights can be largely divided into three stages, namely, “from a limited group to the general public”, “from life to character”, and “from individuals to collective”. In their opinion, individuals, legal persons and collectives are subjects of human rights, but only individuals have purpose, while legal persons and collective are only the means.⁸ Third, the subjects of human rights includes individuals, groups, states, citizens and all other human beings.⁹ Although theoretical differences persist, both individual and collective human rights are guaranteed at present.

 

 

Human rights are interpreted in both narrow sense and broad sense by scholars. Some deem that human rights never refer to all the rights of a citizen, no matter in ancient times or nowadays, but mean a few major rights, or only involve basic and general rights. Human rights “refer to liberty and other democratic rights.”¹⁰ It is a narrow understanding apparently, failing to include all the content of the Chinese socialist human rights theory. On the contrary, .there is also a too wide definition of human rights. Some regard the rights of the members of a social group or organization as “human rights”. Some regard the rights entitled to the parties to a sales contract as “human rights”. Some regard the rights of judges, prosecutors, policemen and government employees entitled by their certain positions as “human rights”. They are too wide indeed. To get a scientific understanding of the Chinese socialist human rights theory, the key is to comprehend the relationship of human rights and rights. Human rights are a kind of rights, but not all the rights can be deemed as human rights.¹¹ The Chinese socialist human rights at least include civil rights, political rights, economic rights, social rights, cultural rights and collective human rights.

 

 

First, human rights are seen as the rights that any person has as a human being, and distinguish human beings from animals. They are subject to change with the development of economy, politics and culture. From the perspective of historical materialism, such rights come from men’s production and daily life, and won’t be possible without social life. When social production develops to a certain degree, new rights come out naturally. For example, civil rights and political rights came out mainly under the capitalist production mode. Second, in the society governed by law, men’s natural rights are transferred to legitimate rights through legislation, providing legal protection for such natural rights. In the background of the legislation of human rights, all the inborn rights are exercised as legitimate rights. Therefore, it is the basic requirements of a law-based society to respect and guarantee citizens’ legitimate rights.[page]

 

 

Human rights can undergo various classifications under different criteria. With different subjects, human rights can be divided into individual human rights and collective human rights. Collective human rights protect individual human rights which are their foundation. Moreover, human rights can be divided into positive human rights and negative human rights based on whether positive action or omission of the state is needed for realizing human rights. Positive human rights necessitate positive action from the state, which is opposite for negative human rights. In addition, there are also the following classifications: human rights and freedom, basic human rights and advanced human rights, original human rights and derivative human rights, as well as express human rights and implicit human rights.

 

 

The origin of human rights, is the theoretical basis of all human rights issues. Different ideas on human rights origin will lead to different human rights theories. The classical human rights theory takes general human nature as its theoretical basis. But human rights researchers in contemporary China study the origin of human rights from a realist view. They are brave to challenge the leading traditional theories of the West, but fail to reach a consensus on the origin of human rights. Many different opinions come out continuously, which are referable to some extent, though insufficient for forming the Chinese socialist human rights theory. The academic circle is generally inclined to confuse and even equate the formation of human rights theory and the methodology of human rights realization. They justify human rights with some means, measures and conditions for exercising human rights.

 

To set the tone for Chinese socialist human rights theory, we have to clarify the above opinions at first, or the theory may be confusing. Some people fail to understand the importance of the human nature in human rights, and justify human rights with aforesaid conditions. In fact, human rights realization and human rights arguments are different, and should be distinguished. We can only rely on ourselves to provide human rights arguments as we can find the essence of human rights only from ourselves. The dialectical unity of the social and natural attributes of human beings demonstrate the origin of human beings and justify their existence. [page]

 

 

The essence of human rights can be summarized as interest and justice. As for interest, just as K. Marx put it, All that proletariat sought to secure is the advancement of its own interests. Human rights issues demonstrate the diversity and complexity of interest. Human rights disputes reflect the disputes of human interests. Therefore, human rights are about interests at its root. As for justice, what kinds of individuals or groups are entitled to what kind of human rights? Which human rights should or can be specified and guaranteed by laws or other social rules? All are subject to the support and recognition by certain generally-accepted ethics, including justice, humanism, equality and freedom with justice as the core. Such ethics are the basis for verifying and developing the origin, subject and content of human rights. We all value human rights. Human rights are not equal to interest or justice.
 

Interest and justice are unified in human rights, and are two critical factors in determining the essence of human rights, driving the progress of human rights. Without “interest”, we cannot understand the essence of conflicts and fights which are common for human rights; while without “justice”, the conflicts and fights of human rights may deviate from the correct direction. Interest is on the objective side, and justice is on the subjective part of human rights. They interact with each other to achieve common development. 

 

 

 

The universality of human rights is an attribute as it ought to be, which means that universal rights apply to all humans equally, regardless of their race, color, gender, language, religion, political opinion, property or education background. It fundamentally recognizes human rights. The particularity of human rights is an attribute as it is, which means that human rights system change in a different way alongside different human rights protection policies and measures in different countries or during different periods of a country. The rights actually entitled to different people are not the same in aspect of quantity and quality. It reflects the diversity and difference of human rights. Human rights cannot be fully realized without recognizing their particularity.[page]

 

It is worth noting that the particularity of human rights is based on their universality. Its premises is the recognition and adherence of the universality of human rights. Particularity doesn’t deny, but advances university. The universality and particularity of human rights are different in nature. We should not deny or degrade particularity, and only recognize or put sided emphasis on the universality of human rights. A good example is a series of wrong human rights theories and policies, such as "human rights know no borders", and "state sovereignty is higher than human rights” under which some intervene in the internal affairs of other states. The understanding about the universality and particularity should not be the same for different human rights issues, such as the philosophy of and faith in human rights. As our society evolves, there will be more universal human rights, and less particular human rights. The universality and particularity of human rights also interact with each other in terms of the means and methodology of realizing human rights. As time goes by, universal and particular human rights will be settled down, and stop the shifting.

 

 

Harmony is a characteristic of the Chinese socialist human rights theory. Confrontation and resistance were always the topics when talking about human rights. Keen contradictions were believed to exist between human rights and power, and only strict control of state power would guarantee human rights. The harmony of human rights, which is embedded in the Chinese socialist human rights theory, reflects the innovation of the inner confrontation stressed in the classical human rights theory. The Chinese socialist human rights theory not only understands the inner contradiction between human rights and power, but also believes that it is temporary to see the conflicts between man and nature, man and society, man and country, culture and culture, religion and religion, nation and nation, as well as state and state. All the elements and relationships in society are sure to become more harmonious with the promotion of law-based governance. In this way, the civilization in aspect of material, spirit, politics and ecology will develop on a harmonious basis, and interpersonal relationship will shift toward dialogues from confrontation, thus presenting a harmonious picture of the society.

 

Stressing common development and mutual trust of human rights and power, the Chinese socialist human rights theory is characterized by tolerance and respect to strive for human happiness. As long as there are human rights and power, their intense relationship cannot be eliminated. Therefore, it is impossible to eradicate the conflicts and confrontation between human rights and power, even with the harmony of human rights. The only thing we can do is to put such confrontation relationship in a harmonious setting. As we can see, human rights and power confront each other not for the purpose of conflicts, but for harmony, or otherwise such confrontation may violate human rights.

 

 

Speaking of their political nature, human rights are deeply political. So their existence and realization are sure to be affected by politics. In terms of the content of human rights, some political human rights and freedom such as the right to vote, freedom of speech and freedom of association and assembly, are closely related to politics. In terms of their realization, human rights are affected by politics. Human rights, decline to be taken as a means for any country, group of countries, class, stratum, political party, social group or individual to seek its political interests. But in a society with social classes, the classes, strata and interested groups which are dominant in aspect of economy and politics are likely to intervene in the recognition and actual exercise of human rights through legislation and law enforcement. [page]

 

Speaking of their non-political nature, the subject of human rights is not political. Everyone is entitled to human rights. The idea is generally accepted in the world, regardless of different political systems and ideology of different countries, and of different guidelines and policies of political parties. There are different political ideas of human rights. In China, for instance, some believe all human rights are connected with social classes. In their opinion, as there is no social class analysis on “people” in the concepts of “human nature”, “humanity” and “putting people first”, such concepts are wrong. With such wrong judgment, they are sure to turn Leftist. 

 

 

Human rights and duties are highly intertwined with each other. We have to deal with the relationship between human rights and duties properly. Their relationship is determined by the social nature of human rights which only exists in interpersonal relationships. In an individual-individual relationship, group-group relationship or individual-group-society relationship, when one is entitled to certain human rights, others are required to respect such human rights. In an individual-state relationship, when one is entitled to certain human rights, the state has to perform its corresponding duties. Otherwise, no human rights can be protected. When you violate others’ human rights on purpose, others won’t respect and may violate yours. When a state fails to perform its duties, individuals won’t accept all the pressure of human rights protection.

 

Therefore, generally speaking, human rights, social duties and state duties interact with each other and are indivisible First, human rights has corresponding duties, and vice versa. When one is entitled to certain human rights, others are required to respect such human rights, and the state has the duty to protect such human rights. Second, human rights and duties are supplementary in function. In the legal system of a state, the existence of either human rights or duties is dependent on the existence of the other. Third, human rights and duties are different in value. Our activities are governed by law based on rights and duties to govern different relationships and pursue the happiness of human beings.[page]

 

No one is supposed to neglect or abuse his human rights or duties. There is no absolute recognition or entitlement to human rights as there are always boundaries which are clarified by law. It is dictatorial if a state deprives or violates its people’s rights without any reason, and there will be no space for human rights. It is anarchism if one is permitted to cross the boundary and abuse his rights, and human rights will be challenged. In a socialist country which is short of democratic tradition, the top priority should be given to prevent and avoid dictatorship. 

 

 

Human rights are the basis of the power of state. Human rights create modern states, and also the power of modern states at the same time, serving as the basis of state power. Human rights are not the means, but the purpose, and state power is the means. Human rights demonstrate the qualities, values and dignity of human beings. Hence, human beings have been pursuing human rights for a long time, and have paid a big price. In view of their high value and significance, human rights are regarded as the basis of modern states and their power. However, the construction of modern states based on human rights are not complete, but in progress. It needs the all-round promotion and development in aspect of economy, society, politics and culture. The full realization of human rights best mirrors the principle of building states based on human rights. In this process, state power plays an important role in fulfillment of human rights, and its authorization and exercise need to be regulated by law. To sum up, the power of modern states based on human rights value is aimed to fulfill human rights.

 

 

 

It is difficult to protect human rights in the case of no state sovereignty. The ultimate value and purpose of state sovereignty is to protect human rights. It is concluded from our experience of human rights protection, and consistent with the trend of the globalized world. The repeated violations of the rights of the Chinese people and our state sovereignty happened at the same time. China’s modern history since the Opium War is a shameful history both in human rights protection and in sovereignty independence. The weakening sovereignty led to the most drastic revolution in China for decades. On one hand, the domestic chaos led to the hard life of the Chinese people, making it impossible to protect human rights. On the other hand, it triggered social revolution and ideology revolution. The weakening sovereignty led to the crisis of human rights in modern China, which also ignited the pursuit of protection mechanism. That is to say, the weakening sovereignty was the basis for the loss of Chinese human rights. [page]

 

Why state sovereignty plays a decisive role in the protection of human rights? With production development, states come out and persist. State sovereignty has the absolute authority over internal affairs and is independent to other states. Its ultimate aim is to protect domestic human rights and to handle the rights and benefits among states for social development until the end of states. Therefore, we must advocate state sovereignty and try our best to promote and protect human rights.

 

 

Democratic governance correlates the quality of human rights protection. In a society with public power, the protection of human rights is mainly guaranteed by democratic politics. On one hand, we have to recognize that production progress and improved civilization provide certain material basis for the entitlement of human rights at some point. On the other hand, undemocratic and uncivilized political system has a big role in violating human rights. It becomes a starting point for us to think about the protection of modern human rights. Given the crucial role of material basis in realizing human rights, it is reasonable and necessary for us to promote material civilization yesterday, today and tomorrow. However, the essence of human rights, is the contradiction between rights and power, which only deals with the material conditions for fulfilling human rights, but fails to answer how to regulate democratic allocation and operation . Human rights represent the voice mainly under public power. Efforts should be made to govern public power, promote its smooth exercise and avoid violating human rights. Human rights focus on public power and the relevant democratic system. So we have to criticize the public power allocation system that is under dictatorship, as it directly limits the effects of material civilization. In such a background, human rights won’t be realized automatically in spite of an incomparable material fortune. We can learn from the experience of democratic politics to promote the Chinese democratic politics.

 

 

Law-based governance is the best way to protect human rights. Human rights can get the full protection from law-based governance, and will face serious crisis in the event of violating the rule of law. Rule by law is the only way in modern China. Law-based governance started after the cultural revolution. It is put forward at the 3rd Plenary Session of the 11th CPC Central Committee, “To secure people’s democracy, we must strengthen our socialist legal system, which will enable democracy to be institutionalized and codified, and ensure that such system and laws are stable, continuous and authoritative. All this will ensure that there are laws to go by, that they are observed and strictly enforced, and that violators are brought to book.”¹² In 1997, the CPC, at its 15th National Congress, established a basic strategy of “governing the country according to law. In 1999,” governing the country according to law and building a socialist country ruled by law” enters the Constitution. Therefore, the strategy of law-based governance is fully established at the levels of Party documents and Constitution. In 2014, the Decision of the CPC Central Committee on Major Issues Concerning All-round Promotion of Law-based Governance was adopted at the 4th Plenary Session of the 18th CPC Central Committee, marking a new chapter of China’s law-based governance.[page]

 

 

To protect human rights, we must accumulate our wealth .“No wealth, no human rights.” A certain amount of wealth is the basis for individuals to exercise human rights. It is a generally-accepted norm in China and in the world. The motto “No wealth, no human rights” is applicable to families, companies, schools and institutions, as well as to clothes, food, housing and transportation. For example, in view of economic development, many laws and regulations double efforts in protecting the benefits of investors without sufficient protection for workers’ rights. To get their limited wages, employees waive their rights reluctantly. In respect of education right protection, wealthier students usually get better education, while poorer students couldn’t fully exercise their education right. Another example, wealthier people usually get higher recognition and are respected by others, while poorer people are difficult to earn deserved respect or high recognition. That is to say, the doctrine that “the State respects and protects human rights” must have solid material foundation, or it is only an empty promise. 

 

 

Dutyholders play a leading role in realizing human rights. Their performance of their duties will directly affect the realization of human rights subject. Therefore, it is important to clarify the dutyholders of human rights: (1) States. States are the primary dutyholders of human rights. States are obliged to protect human rights in applying public power in legislation, administration and judicial field. States are widely taken as human rights dutyholders in the constitutions of many states. It is specified in Article 33.3 of China’s Constitution that “the State respects and protects human rights”. (2) International organizations, which mainly refers to various organizations under the United Nations relating to human rights, including the United Nations General Assembly, the Human Rights Council, the United Nations High Commissioner for Human Rights, UNHCR and other human rights-related institutions under the United Nations, as well as international courts, tribunals and regional institutions relating to human rights protection. (3) Non-governmental organizations (NGOs), which are gradually boom after World War II. NGO’s position and significance are gradually enhanced in the international documents of human rights. (4) Individuals. One cannot enjoy benefits without making any efforts. No one is entitled to any human rights without performing his duties.[page]

 

 

To put it in a simple way, human rights education is to learn the knowledge, skills and values of human rights, and is a key part in realizing human rights. As specified in Article 78 of the Vienna Declaration and Programme of Action adopted at the 2nd World Conference on Human Rights in Vienna in 1993, “The World Conference on Human Rights considers human rights education, training and public information essential for the promotion and achievement of stable and harmonious relations among communities and for fostering mutual understanding, tolerance and peace.” According to Resolution 49/184 adopted at the UN General Assembly on December 23, 1994, human rights education is arranged to establish a general human rights culture by imparting knowledge, developing skills and shaping attitudes. National governments, international organizations, institutions, NGOs, professional associations and individuals are required to develop human rights education and culture. The State Council Information Office of the People’s Republic of China released the National Human Rights Action Plan (2009-2010) and the National Human Rights Action Plan (2012-2015) on April 13, 2009 and June 11, 2012 respectively to clarify the rules on human rights education, crucial for promoting human rights protection and the study of human rights theory.

 

* CHEN Youwu(陈佑武), Professor of Human Rights Research and Education Center, Guangzhou University, Guangzhou, China.

 

1.Zheng Hangsheng and Gu Chunde, Marxist Human Rights Theory and Practice, Beijing: China Procuratorate Press, 1997, p.1.

 

2.Li Long and Wang Exiang, Human Rights Theory and International Human Rights, Wuhan: Wuhan University Press, 1992, at 3.

 

3.Ibid., at 7-8.

 

4.Ibid., at 3.

 

5.Xu Xianming, Principles of Human Rights Law, Beijing: China University of Political, Science and Law Press, 2008, at 103-104.

 

6.Xin Chunying, “Human Rights Concept and the Human Rights Ideas in International Society,” the Contemporary Human Rights (compiled by the Institute of Law of Chinese Academy of Social Sciences), CASS Press, 1992, at 78.[page]

 

7.Zhang Wenxian, “On Human Rights Subject and the Human Rights of Subject,” China Legal Science, No. 5, 1991.

 

8.Xu Xianming and Qu Xiangfei, “Classification of Human Rights Subject,” China Legal Science, No. 2, 2001.

 

9.Li Buyun ed., Human Rights Laws, Beijing: Higher Education Press, 2005, at 10-14.

 

10.Zhang Guangbo, “Upholding the Marxist Human Rights,” China Legal Science, No. 4, 1990.

 

11.Li Buyun and Chen Youwu, “On the Difference between Human Rights and Other Rights,” Henan Social Science, No.1, 2007.

 

12.Selected Works of Deng Xiaoping, Edition 2, Vol. 2, Beijing: People's Publishing House, 1994, at 146.