How Modern Societal Values Have Reshaped Rights and Duties

The corresponding duty changed too, which is the point the question is really about. A duty of forbearance costs nothing and can be performed by inaction; a duty of provision requires taxation, administration and priorities, and it is judged by article 2(1)'s standard of steps to the maximum of its available resources.

Equality: from formal to substantive

Then. Equality meant the same rule for everyone. Article 6 of the French Declaration: the law must be the same for all, whether it protects or punishes.

Now. Equality is understood to require treating differently situated people differently, and the instruments say so. Article 4(1) of the Women's Convention provides that temporary special measures aimed at accelerating de facto equality shall not be considered discrimination, and article 1(4) of the Racial Discrimination Convention makes the same provision for special measures securing the adequate advancement of groups requiring protection.

This is the single clearest instance of a value reshaping a right, because the same word, equality, now requires something the eighteenth century would have called its opposite.

The group: from the individual alone to the collective as well

Then. The rights-holder was an individual, and a claim by a group was a claim by its members severally.

Now. Common article 1 of both Covenants gives all peoples the right of self-determination; article 27 of the Covenant on Civil and Political Rights protects persons belonging to minorities in community with other members of their group; and article 1 of the Declaration on the Right to Development gives the right to every human person and all peoples.

And the difficulty came with it: a group holder raises the question who speaks for the group, which [Third Generation: The Solidarity Rights] takes.

Time: from the living to the unborn

Then. Duties ran between contemporaries.

Now. Sustainable development, the environment and the common heritage of mankind all assert duties owed to people who do not yet exist. This is the hardest of the six for the framework, because a person who does not exist has no standing, no representative and no remedy, so the duty exists without a correlative right-holder in the ordinary sense, which is the asymmetry [Rights and Duties: the Correlativity Thesis] identifies.

What has NOT changed, which a strong answer says

The source. Dignity, asserted in 1948 and repeated in 1966 and 1986, is where the rights still come from.

The structure. Prior to the State, not conferred by it, binding on it. [Natural Law and the Idea of a Natural Right] shows how old that is.

And the unconditionality. For all the modern emphasis on duties, no instrument makes the enjoyment of a right conditional on the holder's performance of a duty. That constancy is what stops the six shifts from being a story of rights dissolving into obligations.

Worked example

A State argues in a treaty body that its constitution, drafted in 1950, guarantees equality before the law and freedom of contract, that it has never discriminated in terms, and that it is therefore in full compliance; and that claims about caste, gender and environmental damage are matters of policy rather than of rights.

The formal equality answer fails on the substantive shift. Equality before the law in the sense of article 6 of the French Declaration is satisfied by a rule that applies to everyone, and that is no longer what the instruments require. Article 1(4) of the Racial Discrimination Convention and article 4(1) of the Women's Convention both provide that special measures for the advancement of disadvantaged groups are not discrimination, which presupposes that identical treatment can itself perpetuate inequality.

The freedom of contract answer fails on the duty-bearer shift. A State that leaves private discrimination to the market has not discharged the obligation to protect, and the whole point of the tripartite scheme is that respecting a right is only one of three duties.

The policy answer fails on the content shift. Articles 22 to 27 of the Universal Declaration and the Covenant on Economic, Social and Cultural Rights make provision a matter of obligation, subject to progressive realisation, not a matter of political discretion.

The environmental claim engages the time shift and is the weakest for the claimant. A duty owed to future generations has no claimant with standing, so the honest answer identifies the right through a living person's health under article 12 of the Covenant on Economic, Social and Cultural Rights rather than resting on the interests of the unborn.

And what the State can properly say. That the pace of provision is governed by available resources, that article 2(1) requires steps rather than results, and that a 1950 constitution is not evidence of bad faith. A good answer concedes this and points out that progressive realisation is a standard, not an exemption.

What it does NOT mean

The shifts are not a drift of opinion. Each is recorded in a text, and an answer that asserts changing values without naming instruments has given a sociology answer to a law question.

Substantive equality does not abolish formal equality. It supplements it, and both conventions call the measures special and temporary.

The widening of the duty-bearer does not make private parties bound by treaties. It works through the State's duty to protect and through instruments addressed to private actors.

And none of the six shifts has made rights conditional on duties.

Quick revision

• Six shifts, each with its instrument. Holder: from Man and of the Citizen to UDHR article 2's without distinction of any kind, with CERD 1965 and CEDAW 1979 written because the general guarantee had not delivered. Duty-bearer: from the State alone to private power, through the duty to protect and instruments addressed to business. Content: from forbearance to provision, UDHR articles 22 to 27 and the ICESCR, with duties judged by to the maximum of its available resources. Equality: from the law must be the same for all to temporary special measures aimed at accelerating de facto equality not being discrimination, CEDAW article 4(1) and CERD article 1(4). Group: common article 1 of both Covenants, ICCPR article 27, and the Right to Development's every human person and all peoples. Time: duties to the unborn, with no correlative right-holder.
• The equality shift is the clearest: the same word now requires what the eighteenth century would have called its opposite.
• What has not changed: the source (dignity), the structure (prior, not conferred, binding), and the unconditionality of rights.
• Name a text for every shift. Asserting that values have changed, without instruments, is a sociology answer to a law question.

Test yourself

1. Give the six shifts with the instrument that records each. Holder, duty-bearer and content. The holder widened, from the French Declaration's rights of Man and of the Citizen, proclaimed alongside colonial slavery and the exclusion of women, to article 2 of the Universal Declaration entitling everyone without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status; and the widening continued after 1948 with the Racial Discrimination Convention of 1965 and the Women's Convention of 1979, written because a general guarantee had not delivered. The duty-bearer widened from the State alone to private power, through the obligation to protect within the tripartite scheme and through instruments addressed to business. The content widened from forbearance to provision, in articles 22 to 27 of the Universal Declaration and the Covenant on Economic, Social and Cultural Rights, with performance judged by the standard of steps to the maximum of available resources.

Equality, the group and time. Equality moved from formal to substantive, from the French Declaration's requirement that the law be the same for all to article 4(1) of the Women's Convention and article 1(4) of the Racial Discrimination Convention providing that special measures for advancement are not discrimination. The group was admitted beside the individual, in common article 1 of both Covenants, article 27 of the Civil and Political Covenant, and the Right to Development's grant to every human person and all peoples. And the time horizon extended to the unborn, which is the shift the framework handles least well.

2. Why is the equality shift the clearest example of a value reshaping a right? Because the same word now requires what the tradition that coined it would have regarded as its violation. Article 6 of the French Declaration provides that the law must be the same for all, whether it protects or punishes, and on that understanding any measure distinguishing between groups is a departure from equality. The modern instruments reverse the presumption for disadvantaged groups: article 4(1) of the Women's Convention provides that temporary special measures aimed at accelerating de facto equality shall not be considered discrimination, and article 1(4) of the Racial Discrimination Convention makes corresponding provision for special measures securing the adequate advancement of groups requiring protection. The premise of both is that identical treatment of differently situated people perpetuates the inequality it appears to ignore. Nothing in the text of the word changed; what changed is a judgment about what equality is for, and the instruments record the change rather than leaving it to argument.

3. Which of the six shifts is hardest for the framework, and why? The extension of the time horizon to those not yet born. Every other shift can be accommodated within the four elements a claim needs: the widening of the holder, the duty-bearer and the content all leave a determinate claimant, a determinate defendant and a statable duty. A duty owed to future generations has no correlative right-holder in the ordinary sense, because a person who does not exist has no standing, no representative and no remedy, so the relation is a duty without a claimant, which is exactly the asymmetry that makes duties and rights non-equivalent. That is why an advocate is generally better advised to locate the claim in a living person's interests, through the right to health under article 12 of the Covenant on Economic, Social and Cultural Rights or the right to an adequate standard of living under article 11, rather than resting the case on the interests of the unborn, and why the third generation of rights has more difficulty than the first two.

4. What has not changed, and why does saying so strengthen an answer? Three things. The source has not changed: rights still derive from the inherent dignity of the human person, asserted in the Universal Declaration in 1948, repeated in both Covenants in 1966 and again in the Right to Development Declaration in 1986. The structure has not changed: a human right is still prior to the State, not conferred by it, and binding on it, which is the architecture the natural law tradition built and the modern instruments kept when they dropped its vocabulary. And the unconditionality has not changed: for all the modern emphasis on duties in article 29(1), in the Covenant preambles and in article 2(2) of the Right to Development Declaration, no instrument makes the enjoyment of a right conditional on the holder having performed a duty. Saying this strengthens an answer because it prevents the six shifts from reading as a story of rights dissolving into obligations, and it shows the candidate can distinguish what has moved from what has held.

5. A State claims compliance because its 1950 constitution guarantees equality before the law and freedom of contract. Answer it across the shifts. Formal equality is not enough after the equality shift: a rule applying to everyone satisfies article 6 of the French Declaration, and the instruments now presuppose that identical treatment can entrench disadvantage, which is why article 1(4) of the Racial Discrimination Convention and article 4(1) of the Women's Convention exclude special measures from the definition of discrimination. Freedom of contract does not answer the duty-bearer shift, because leaving private discrimination to the market fails the obligation to protect, and respecting a right is only one of the three duties a right generates. Calling provision a matter of policy does not answer the content shift, because articles 22 to 27 of the Universal Declaration and the Covenant on Economic, Social and Cultural Rights make provision obligatory subject to progressive realisation rather than discretionary. The environmental claim is the weakest for the claimant and engages the time shift, so it should be pleaded through a living person's health under article 12 rather than through the interests of the unborn. What the State may properly say is that article 2(1) requires steps to the maximum of available resources rather than immediate results, and a good answer concedes this while pointing out that progressive realisation is a standard against which conduct is measured and not an exemption from measurement.