[ Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is an important statement of natural rights, but not legally binding on any member state unless its provisions are adopted into that state's laws.
]
Natural rights were traditionally viewed as exclusively negative rights,[For example, the imperative "not to harm others" is said to be justified by natural law, but the same is not true when it comes to providing protection against harm] whereas human rights also comprise positive rights.[See James Nickel, Human Rights , 2010. The claim that "..all human rights are negative rights.." is rejected, therefore human rights also comprise positive rights.] Even on a natural rights conception of human rights, the two terms may not be synonymous.
The concept of natural rights is not universally accepted, partly due to its religious associations and perceived incoherence. Some philosophers argue that natural rights do not exist and that legal rights are the only rights; for instance, Jeremy Bentham called natural rights "simple nonsense".
History
The idea that certain rights are natural or inalienable also has a history dating back at least to the Stoics of late Antiquity, through Thomism of the early Middle Ages,
The existence of natural rights has been asserted by different individuals on different premises, such as a priori philosophical reasoning or religious principles. For example, Immanuel Kant claimed to derive natural rights through reason alone. The United States Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are ... endowed by their Creator with certain unalienable Rights".
Likewise, different philosophers and statesmen have designed different lists of what they believe to be natural rights; almost all include the right to life and liberty as the two highest priorities. H. L. A. Hart argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. T. H. Green argued that "if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life."[Green, T.H. (1883). Lectures on the Principles of Political Obligation, p. 114.] John Locke emphasized "life, liberty and property" as primary. However, despite Locke's influential defense of the right of revolution, Thomas Jefferson substituted "pursuit of happiness" in place of "property" in the United States Declaration of Independence.
Ancient
Stephen Kinzer, a veteran journalist for The New York Times and the author of the book All The Shah's Men, writes in the latter that:
The 40 Principal Doctrines of the Epicureans taught that "in order to obtain protection from other men, any means for attaining this end is a natural good" (PD 6). They believed in a contractarian ethics where mortals agree to not harm or be harmed, and the rules that govern their agreements are not absolute (PD 33), but must change with circumstances (PD 37–38). The Epicurean doctrines imply that humans in their natural state enjoy personal sovereignty and that they must consent to the laws that govern them, and that this consent (and the laws) can be revisited periodically when circumstances change.
The Stoics held that no one was a slave by nature; slavery was an external condition juxtaposed to the internal freedom of the soul ( sui juris). Seneca the Younger wrote:
Of fundamental importance to the development of the idea of natural rights was the emergence of the idea of natural human equality. As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca. ... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature."[Cicero, De Legibus (Keyes translation), book 1, section 28.]
Modern
One of the first Western thinkers to develop the contemporary idea of natural rights was French theologian Jean Gerson, whose 1402 treatise De Vita Spirituali Animae is considered one of the first attempts to develop what would come to be called modern natural rights theory.[Tuck, Richard. Philosophy and Government 1572–1651 (1993), pp. 25–27. ]
The Polish-Lithuanian union made a natural rights case at the Council of Constance (1414–1418), led by Paulus Vladimiri, rector of the Jagiellonian University. He challenged legality of the Teutonic Order's crusade against Lithuania, arguing that the Order could only wage a defensive war if pagans violated the natural rights of the Christians. Vladimiri further stipulated that infidels had rights which had to be respected, and neither the Pope nor the Holy Roman Emperor had the authority to violate them. Lithuanians also brought a group of Samogitian representatives to testify to atrocities committed by the Order.
The Stoic doctrine that the "inner part cannot be delivered into bondage"[Davis, David Brion (1966). The Problem of Slavery in Western Culture. Cornell University Press, p. 77. ] re-emerged centuries later in the Reformation doctrine of liberty of conscience. In 1523, Martin Luther wrote:
17th-century English philosopher John Locke discussed natural rights in his work, identifying them as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the Virginia Declaration of Rights, "all men are born equally free", and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity."[Maier, Pauline (1983). American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf, 1993, p. 134.] Another 17th-century Englishman, John Lilburne (known as Freeborn John), who came into conflict with both the monarchy of King Charles I and the military dictatorship of Oliver Cromwell, argued for level human basic rights he called " freeborn rights" which he defined as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.
The distinction between alienable and unalienable rights was introduced by Francis Hutcheson. In his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the Declaration of Independence, stating: "For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. ... Unalienable Rights are essential Limitations in all Governments." Hutcheson, however, placed clear limits on his notion of unalienable rights, declaring that "there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest public Good."[Hutcheson, Francis (2004), An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises (Indianapolis), pp. 192, 193.] Hutcheson elaborated on this idea of unalienable rights in his A System of Moral Philosophy (1755), based on the Reformation principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable". Hutcheson wrote: "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."[Hutcheson, Francis. A System of Moral Philosophy. London, 1755, pp. 261–262.]
In the German Enlightenment, Hegel gave a highly developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. According to Hegel, the same would not apply to those aspects that make one a person:
In discussion of social contract theory, "inalienable rights" were said to be those rights that could not be surrendered by citizens to the sovereign. Such rights were thought to be natural rights, independent of positive law. Some social contract theorists reasoned, however, that in the natural state only the strongest could benefit from their rights. Thus, people form an implicit social contract, ceding their natural rights to the authority to protect the people from abuse, and living henceforth under the legal rights of that authority.
Many historical apologies for slavery and illiberal government were based on explicit or implicit voluntary contracts to alienate any "natural rights" to freedom and self-determination.[Philmore, J. 1982. "The Libertarian Case for Slavery: A Note on Nozick". Philosophical Forum. XIV (Fall 1982): 43–58.] The de facto inalienability arguments of Hutcheson and his predecessors provided the basis for the Abolitionism to argue not simply against involuntary slavery but against any explicit or implied contractual forms of slavery. Any contract that tried to legally alienate such a right would be inherently invalid. Similarly, the argument was used by the democratic movement to argue against any explicit or implied social contracts of subjection ( pactum subjectionis) by which a people would supposedly alienate their right of self-government to a sovereign as, for example, in Leviathan by Thomas Hobbes. According to Ernst Cassirer,
These themes converged in the debate about American independence. While Jefferson was writing the Declaration of Independence, Welsh nonconformist Richard Price sided with the colonists' claim that King George III was "attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title."[Price, Richard (1979). Observations on the Nature of Civil Liberty. 1776, Part I. Reprinted in: Peach, Bernard, (Ed.) Richard Price and the Ethical Foundations of the American Revolution. Duke University Press. ] Price again based the argument on the de facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which gives us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause."
Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and again restated the de facto basis for the argument that the "liberty of men as agents is that power of self-determination which all agents, as such, possess."[Price, Richard (1979). Additional Observations on the Nature and Value of Civil Liberty. Reprinted in: Peach, Bernard, (Ed.) Richard Price and the Ethical Foundations of the American Revolution. Duke University Press, p. 136.]
In Intellectual Origins of American Radicalism, Staughton Lynd pulled together these themes and related them to the slavery debate:
Meanwhile, in America, Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important",[Wills, Gary (1979). Inventing America. New York: Random House, p. 213] and in the 1776 United States Declaration of Independence, famously condensed this to:
In the 19th century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U.S. constitution recognized and protected the institution of slavery. As a lawyer, future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van Zandt, who had been charged with violating the Fugitive Slave Act, that:
The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke claimed that rights arise from the actions of government, or evolve from tradition, and that neither of these can provide anything inalienable. (See Bentham's "Critique of the Doctrine of Inalienable, Natural Rights", and Burke's Reflections on the Revolution in France). Presaging the shift in thinking in the 19th century, Bentham famously dismissed the idea of natural rights as "nonsense on stilts". By way of contrast to the views of Burke and Bentham, Patriot scholar and justice James Wilson criticized Burke's view as "tyranny".
The signers of the Declaration of Independence deemed it a "self-evident truth" that all men "are endowed by their Creator with certain unalienable Rights".
In The Social Contract, Jean-Jacques Rousseau claims that the existence of inalienable rights is unnecessary for the existence of a constitution or a set of laws and rights. This idea of a rights and responsibilities are derived from a consensual contract between the government and the peopleis the most widely recognized alternative.
One criticism of natural rights theory is that one cannot draw norms from facts.
There is also debate as to whether all rights are either natural or legal. Fourth president of the United States James Madison, while representing Virginia in the House of Representatives, believed that there are rights, such as trial by jury, that are social rights, arising neither from natural law nor from positive law (which are the basis of natural and legal rights respectively) but from the social contract from which a government derives its authority.[Introduction of the Bill of Rights in Congress, 1789 Jun 8, 21 Jul, 13, 18–19 August; Annals 1:424–450, 661–665, 707–717, 757–759, 766.]
Thomas Hobbes
Thomas Hobbes (1588–1679) included a discussion of natural rights in his moral and political philosophy. Hobbes' conception of natural rights extended from his conception of man in a "state of nature". Thus he argued that the essential natural (human) right was "to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own judgement, and Reason, he shall conceive to be the aptest means thereunto." ( Leviathan. 1, XIV)
Hobbes sharply distinguished this natural "liberty", from natural "laws", described generally as "a precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving his life; and to omit, that, by which he thinketh it may best be preserved." ( Leviathan. 1, XIV)
In his natural state, according to Hobbes, man's life consisted entirely of liberties and not at all of laws – "It followeth, that in such a condition, every man has the right to every thing; even to one another's body. And therefore, as long as this natural Right of every man to every thing endureth, there can be no security to any man... of living out the time, which Nature ordinarily allow men to live." ( Leviathan. 1, XIV)
This would lead inevitably to a situation known as the "war of all against all", in which human beings kill, steal and enslave others to stay alive, and due to their natural lust for "Gain", "Safety" and "Reputation". Hobbes reasoned that this world of chaos created by unlimited rights was highly undesirable, since it would cause human life to be "solitary, poor, nasty, brutish, and short". As such, if humans wish to live peacefully they must give up most of their natural rights and create moral obligations to establish political and civil society. This is one of the earliest formulations of the theory of government known as the social contract.
Hobbes objected to the attempt to derive rights from "natural law", arguing that law ("lex") and right ("jus") though often confused, signify opposites, with law referring to obligations, while rights refer to the absence of obligations. Since by our (human) nature, we seek to maximize our well being, rights are prior to law, natural or institutional, and people will not follow the laws of nature without first being subjected to a sovereign power, without which all ideas of Ethics are meaningless – "Therefore before the names of Just and Unjust can have place, there must be some coercive Power, to compel men equally to the performance of their Covenants..., to make good that Propriety, which by mutual contract men acquire, in recompense of the universal Right they abandon: and such power there is none before the erection of the Commonwealth." ( Leviathan''. 1, XV)
This marked an important departure from medieval natural law theories which gave precedence to obligations over rights.
John Locke
John Locke (1632–1704) was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke believed in a natural right to life, liberty, and property. It was once conventional wisdom that Locke greatly influenced the American Revolution with his writings of natural rights, but this claim has been the subject of protracted dispute in recent decades. For example, the historian Ray Forrest Harvey declared that Jefferson and Locke were at "two opposite poles" in their political philosophy, as evidenced by Jefferson's use in the Declaration of Independence of the phrase "pursuit of happiness" instead of "property".
According to Locke, there are three natural rights:
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Life: everyone is entitled to live.
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Liberty: everyone is entitled to do anything they want to so long as it does not conflict with the first right.
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Estate: everyone is entitled to own all they create or gain through gift or trade so long as it does not conflict with the first two rights.
In developing his concept of natural rights, Locke was influenced by reports of society among Native Americans, whom he regarded as natural peoples who lived in a "state of liberty" and perfect freedom, but "not a state of license".[John Locke, Two Treatises of Government – Of Civil Government, Bk.2, Chap 2, "On The State of Nature", §4,6,14, Chap 5, "Of Property", §26 (London : Whitmore & Fenn) 1821 pp. 189, 191, 199, 209.] It also informed his conception of social contract. Although he does not say so explicitly, his position implies that even in light of our unique characteristics we should not be treated differently by our neighbors or our rulers. "Locke is arguing that there is no natural characteristic sufficient to distinguish one person from another... of course, there are plenty of natural differences between us" (Haworth 103).
By founding this sense of freedom for all, Locke was laying the groundwork for the equality that occurs today. Despite the apparent misuse of his philosophy in early American democracy. The Civil Rights movement and the suffrage movement both called out the state of American democracy during their challenges to the government's view on equality. To them it was clear that when the designers of democracy said all, they meant all people shall receive those natural rights that John Locke cherished so deeply. "a state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another" (Locke II,4).
The social contract is an agreement between members of a country to live within a shared system of laws. Specific forms of government are the result of the decisions made by these persons acting in their collective capacity. Government is instituted to make laws that protect the three natural rights. If a government does not properly protect these rights, it can be overthrown.
Thomas Paine
Thomas Paine (1731–1809) further elaborated on natural rights in his influential work Rights of Man (1791),
American individualist anarchists
]]While at first American individualist anarchists adhered to natural rights positions, later in this era led by Benjamin Tucker, some abandoned natural rights positions and converted to Max Stirner's Egoist anarchism. Rejecting the idea of moral rights, Tucker said there were only two rights: "the right of might" and "the right of contract".[Tucker, Instead of a Book, p. 350]
According to Wendy McElroy:
Several periodicals were "undoubtedly influenced by Liberty's presentation of egoism, including I published by C.L. Swartz, edited by W.E. Gordak and J.W. Lloyd (all associates of Liberty); The Ego and The Egoist, both of which were edited by Edward H. Fulton. Among the egoist papers that Tucker followed were the German Der Eigene, edited by Adolf Brand, and The Eagle and The Serpent, issued from London. The latter, the most prominent English-language egoist journal, was published from 1898 to 1900 with the subtitle 'A Journal of Egoistic Philosophy and Sociology.
Leo Strauss: Critique & Defense of Natural Right
Leo Strauss defends natural right against German critiques of a sort that pave the way to the Third Reich in his Walgreen lectures and in later works
Contemporary
Many documents now echo the phrase used in the United States Declaration of Independence. The preamble to the 1948 United Nations Universal Declaration of Human Rights asserts that rights are inalienable: "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." Article 1, § 1 of the California Constitution recognizes inalienable rights and articulated some (not all) of those rights as "defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." However, there is still much dispute over which "rights" are truly natural rights and which are not, and the concept of natural or inalienable rights is still controversial to some.
Erich Fromm argued that some powers over human beings could be wielded only by God, and that if there were no God, no human beings could wield these powers.[Erich Fromm (1973), The Revolution of Hope: Toward a Humanized Technology, New York: Bantam.]
Contemporary political philosophies continuing the classical liberal tradition of natural rights include libertarianism, anarcho-capitalism and Objectivism, and include amongst their canon the works of authors such as Robert Nozick, Ayn Rand[ "Individual Rights" – Ayn Rand Lexicon. . Retrieved 29 July 2013.] and Murray Rothbard.
Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability.
Various philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to separate truly rights from supposed rights, stating that any principle that requires itself to be disproved is an axiom. Critics have pointed to the lack of agreement between the proponents as evidence for the claim that the idea of natural rights is merely a political tool.
Hugh Gibbons has proposed a descriptive argument based on human biology. His contention is that human beings were other-regarding as a matter of necessity, to avoid the costs of conflict. Over time they developed expectations that individuals would act in certain ways which were then prescribed by society (duties of care etc.) and that eventually crystallized into actionable rights.
Philosopher Alex Naileg argues that if biological parents have parental responsibility towards their born children, then abortion rights entail that persons capable of becoming pregnant have the right to relinquish their future parental responsibility; however, the biological fathers of their born children do not have the same right to relinquish their future parental responsibility, thereby violating equality of rights. Thus, under these premises biologically different people have different rights.
Catholic Church
The Catholic Church considers natural law a dogma. The Church considers that: "The natural law expresses the original moral sense which enables man to discern by reason the good and the evil, the truth and the lie: 'The natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin . . . But this command of human reason would not have the force of law if it were not the voice and interpreter of a higher reason to which our spirit and our freedom must be submitted.
See also
Further reading
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Ellerman, David, Neo-Abolitionism: Abolishing Human Rentals in Favor of Workplace Democracy, SpringerNature, 2021
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Grotius, Hugo, The Rights Of War And Peace: Three Volume Set, 1625
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Haakonssen, Knud, Grotius, Pufendorf and Modern Natural Law, 1999
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Hutcheson, Francis. A System of Moral Philosophy. 1755, London.
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Locke, John. Two Treatises of Government. 1690 (primarily the second treatise)
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Lloyd Thomas, D.A. Locke on Government. 1995, Routledge.
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Pufendorf, Baron Samuel von, Law of Nature and Nations, 1625
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Siedentop, Larry, Inventing the Individual: The Origins of Western Liberalism, Belknap Press, 2014.
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Tierney, Brian, The Idea of Natural Rights, Eerdmans, 1997.
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Tuck, Richard, Natural Rights Theories: Their Origin and Development, 1982
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Waldron, Jeremy ed. Theories of Rights 1984, Oxford University Press.
External links
