[Introduction to Constitutional Law #4] What are human rights? (General Overview of Human Rights)

The flow of learning human rights in legal studies

"Human rights." In recent years, we have had more opportunities to hear this term. However, even if we say "human rights" in a word, the content varies. There are various types of human rights stipulated in the Constitution, each with its own nature and judicial precedents. From this #4 onwards, the Introduction to Constitutional Law series will deal with human rights for a while. I will write the articles in the following order. (In principle, I intend to create the articles in the order generally handled in law faculties, etc.)

1. Principles of fundamental human rights

Fundamental human rights are "eternal rights that all people possess from birth and which cannot be infringed upon." Using this as an axis, I will introduce various principles.

2. Limitations of fundamental human rights

Individual human rights are not absolute and unlimited. The principle of fairness used to adjust when human rights conflict with other human rights is the public welfare.

3. Individual human rights

Various human rights are clearly stated in the Constitution of Japan, and in recent years, new human rights have also come to be asserted. I will introduce individual human rights.

What is the nature of human rights?

Here, I will explain what "human rights" are and what kind of nature they have.

1. What are human rights?

To explain simply, human rights are universal principles that one possesses for the reason of being human. In other words, if you are a "human," everyone possesses human rights. Please keep this firmly in mind when studying human rights. Note that human rights have the following three characteristics.

(1) Inherent nature

This is the characteristic that human rights are naturally possessed from birth simply because one is "born as a human." This is a characteristic that also connects to what I talked about in "1. What are human rights?"

(2) Inviolability

This is the characteristic that no power of the state can infringe upon a person's human rights, and that human rights should be guaranteed permanently.

(3) Universality

This is the characteristic that, regardless of factors such as race, gender, age, nationality, religion, or social status, all people possess human rights from birth for the reason of "being human."

On the classification of human rights

Here, we will classify human rights to some extent. (Detailed explanations of individual human rights will be provided in a session on specific human rights, so they are omitted here.)

1. Freedom Rights

These are rights that allow individuals to act and think freely according to their own will, without unjust intervention or interference from the state. They are stipulated as follows.

(1) Freedom of Spirit
・Freedom of thought and conscience (Article 19)
・Freedom of religion (Article 20)
・Freedom of expression (Article 21)
・Freedom of academic inquiry (Article 23)

(2) Freedom of the Person
・Freedom from bondage and involuntary servitude (Article 18)
・Guarantee of due process (Article 31)
・Rights of suspects and defendants (Articles 31, 33, 34, 35, 38)

(3) Freedom of Economic Activity
・Freedom of residence, removal, and choice of occupation (Article 22)
・Guarantee of property rights (Article 29)

2. Rights to Participate in Government

These are rights for citizens to participate in politics directly or indirectly. They are rights intended to protect other rights.

(1) Right to vote (Article 15)

(2) Right to be elected (Article 15)

(3) Right to review Supreme Court judges (Article 79)

(4) Local referendum (Article 95)

(5) National referendum on constitutional amendments (Article 96)

3. Social Rights

These are rights to demand active consideration or intervention from the state so that economically and socially vulnerable individuals can lead a life worthy of human beings.

(1) Right to life (Article 25)

(2) Right to receive an education (Article 26)

(3) Right to work and fundamental labor rights (Articles 27, 28)
<Fundamental Labor Rights (Three Labor Rights)>
・Right to organize
・Right to bargain collectively
・Right to act collectively (Right to strike)

4. Others
There are also comprehensive fundamental rights, equality under the law, rights to claim, and others.

What are legal rights?

This refers to a "legally recognized power" that allows individuals or groups to assert and enjoy certain benefits based on the law, or to demand specific actions from others. There are two types as follows.

(1) Concrete Rights

These are rights that allow one to directly seek protection, relief, or specific claims from a court based on the provisions of the Constitution.

(2) Abstract Rights

In contrast to (1) Concrete Rights, these are rights where, although the Constitution stipulates the right, one cannot make a specific claim to a court based solely on that provision; they only become legal rights once specific legislation is enacted.

What is a Program Provision?

Regarding human rights provisions written in the Constitution, these do not grant direct legal rights to individual citizens, but rather set political and moral goals or policy indicators for legislation and administration. A representative example is the right to life guaranteed by Article 25 of the Constitution.

Important Precedent Regarding Program Provisions

The Asahi Litigation is an important precedent deeply related to the relationship between the right to life stipulated in Article 25 of the Constitution and program provisions. This was a lawsuit filed by a man undergoing tuberculosis treatment against the Minister of Health and Welfare (at the time), claiming that the level of public assistance at the time infringed upon the right to life stipulated by the Constitution. In the trial, the legal nature of the provisions of Article 25 of the Constitution (right to life) was contested: whether it was a "concrete/abstract right" that could be directly asserted in court, or merely a "program provision" that serves as a goal for the state. Please note that this is explained in detail in this article, so please take a look if you are interested.

What is Institutional Guarantee?

Institutional guarantee is a mechanism that does not directly guarantee individual human rights, but rather protects the core of a system by establishing specific institutions in the Constitution, thereby indirectly guaranteeing the rights and freedoms of the people. Specifically, this includes local autonomy, separation of church and state, the private property system, independence of the judiciary, university autonomy, and the marriage and family system.

We cover the separation of church and state in detail here.

Important Precedents Regarding Institutional Guarantee

Important precedents deeply related to institutional guarantee are the "Todai Popolo Incident" and the "Tsu Jichinsai (Ground-Breaking Ceremony) Incident."

The "Todai Popolo Incident" was a case contested regarding the limits of university autonomy. It was disputed whether police intervention in activities within a university is permissible or not. The "Todai Popolo Incident" is explained in detail in the following article, so please take a look if you are interested.

The "Tsu Jichinsai Incident" was a lawsuit in which it was contested whether a ground-breaking ceremony performed by a local government (administration) regarding the separation of church and state violated the principle of separation of church and state as a religious activity. The "Tsu Jichinsai Incident" is explained in detail in the following article, so please take a look if you are interested.

Summary of this session

Human rights are held equally by everyone for the reason of "being human," and cannot be infringed upon by the state or any other power. Furthermore, what is stipulated as human rights includes legal rights (concrete rights/abstract rights), program provisions, and institutional guarantees that indirectly protect human rights. Important precedents are the Asahi Litigation for program provisions and the "Todai Popolo Incident" for institutional guarantees.

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Related Articles

A list of other introductory articles on the Constitution can be found here.

↑ This judicial precedent also deals with university autonomy.