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Natural and legal rights are two types of . Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal and inalienable (they cannot be repealed or restrained by human laws). Legal rights are those bestowed onto a person by a given (they can be modified, repealed, and restrained by human laws).

The concept of is related to the concept of natural rights. Natural law first appeared in ancient Greek philosophy,Rommen, Heinrich A., The Natural Law: A Study in Legal and Social Philosophy trans. Thomas R. Hanley, O.S.B., Ph.D. (B. Herder Book Co., 1947 reprinted ), p.. 5 and was referred to by Roman philosopher . It was subsequently alluded to in the , and was then developed in the by Catholic philosophers such as Albert the Great and his pupil . During the Age of Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a , , and – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.

The idea of is also closely related to that of natural rights: some acknowledge no difference between the two, regarding them as synonymous, while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights.Jones, Peter. Rights. Palgrave Macmillan, 1994, p. 73. Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 Universal Declaration of Human Rights is an important enshrining one conception of natural rights into international . Natural rights were traditionally viewed as exclusively ,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 proposition that is one that gained the interest of philosophers and legal scholars in the 20th century and into the 21st. "Animal Rights", Encyclopædia Britannica, 2007; Dershowitz, Alan. Rights from Wrongs: A Secular Theory of the Origins of Rights, 2004, pp. 198–99; "Animal Rights: The Modern Animal Rights Movement", Encyclopædia Britannica, 2007.

The idea that certain rights are natural or inalienable also has a history dating back at least to the of and of the early , and descending through the Protestant Reformation and the Age of Enlightenment to today.

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, claimed to derive natural rights through reason alone. The United States Declaration of Independence, meanwhile, is based upon the "" 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 and 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.” Lectures on the Principles of Political Obligation, T. H. Green, 1883, p.114. emphasized "life, liberty and property" as primary. However, despite Locke's influential defense of the right of revolution, substituted "pursuit of happiness" in place of "property" in the United States Declaration of Independence.

, 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 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 and Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it." Cicero argues in that "we are born for Justice, and that right is based, not upon opinions, but upon Nature."Cicero, De Legibus (Keyes translation), book 1, section 28.

One of the first Western thinkers to develop the contemporary idea of natural rights was French theologian , 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.Richard Tuck, Philosophy and Government 1572–1651 (1993), pp. 25-7.

Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage"Davis, David Brion. The Problem of Slavery in Western Culture. Cornell University Press, 1966, p. 77. re-emerged in the Reformation doctrine of liberty of conscience. wrote:

17th-century 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 . Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As 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."Pauline Maier, American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf, 1993, p. 134. Another 17th-century Englishman, (known as Freeborn John), who came into conflict with both the monarchy of King Charles I and the military dictatorship of governed republic, argued for level human basic rights he called " 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 publick Good."Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises (Indianapolis, 2004), 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. 261–2.

In the German Enlightenment, 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 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 , 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 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 . According to ,

These themes converged in the debate about American Independence. While Jefferson was writing the Declaration of Independence, in England sided with the Americans' claim "that Great Britain is 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. 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. Press, 1979. 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." Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:

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. 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, 1979, p. 136. In Intellectual Origins of American Radicalism, pulled together these themes and related them to the slavery debate:

Meanwhile, in America, "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important",Garry Wills, 1979. Inventing America. New York: , 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 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 and as groundless. Bentham and Burke, writing in 18th century Britain, 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 British nationals Burke and Bentham, the leading American revolutionary scholar condemned 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 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. This objection is variously expressed as the , the naturalistic fallacy, or the appeal to nature. G.E. Moore, for example, said that ethical naturalism falls prey to the naturalistic fallacy. Some defenders of natural rights theory, however, counter that the term "natural" in "natural rights" is contrasted with "artificial" rather than referring to . , for example, contends that and natural rights are derived from self-evident principles, not from speculative principles or from facts.

There is also debate as to whether all rights are either natural or legal. Fourth president of the United States , while representing Virginia in the House of Representatives, believed that there are rights, such as trial by jury, that are , arising neither from nor from (which are the basis of natural and legal rights respectively) but from the from which a government derives its authority.Introduction of the Bill of Rights in Congress, 1789 Jun 8, Jul 21, Aug 13, 18–19; Annals 1:424-50, 661–65, 707–17, 757–59, 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 in order 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 in order to establish political and . This is one of the earliest formulations of the theory of government known as the .

Hobbes objected to the attempt to derive rights from "," 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 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 , , and . It was once conventional wisdom that Locke greatly influenced the American Revolutionary War 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." More recently, the eminent Law As Culture and Culture As Law: Essays in Honor of John Phillip Reid Retrieved on 2013-07-29. legal historian John Phillip Reid has deplored contemporary scholars’ "misplaced emphasis on John Locke," arguing that American revolutionary leaders saw Locke as a commentator on established constitutional principles. has defended Locke's influence on the Founding, claiming that historians who argue to the contrary either misrepresent the classical republican alternative to which they say the revolutionary leaders adhered, do not understand Locke, or point to someone else who was decisively influenced by Locke. This position has also been sustained by Michael Zuckert.

According to Locke there are three natural rights:

  • Life: everyone is entitled to live.
  • Liberty: everyone is entitled to do anything they want to so long as it doesn't conflict with the first right.
  • Estate: everyone is entitled to own all they create or gain through gift or trade so long as it doesn't 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 "near prefect freedom", but not license. It also informed his conception of .

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 these 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), emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges:

American individualist anarchists
]]While at first American individualist anarchists adhered to natural rights positions, later in this era led by , some abandoned natural rights positions and converted to 's . Rejecting the idea of moral rights, Tucker said there were only two rights: "the right of might" and "the right of contract". He also said, after converting to Egoist individualism, "In times past... it was my habit to talk glibly of the right of man to land. It was a bad habit, and I long ago sloughed it off.... Man's only right to land is his might over it."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 , edited by , 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. Among those American anarchists who adhered to egoism include , John Beverley Robinson, Steven T. Byington, , James L. Walker, and E.H. Fulton.

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 ." 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.

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 , anarcho-capitalism and Objectivism, and include amongst their canon the works of authors such as , Ludwig von Mises, , Individual Rights – Ayn Rand Lexicon. Retrieved 2013-07-29. and . A libertarian view of inalienable rights is laid out in Morris and Linda Tannehill's The Market for Liberty, which claims that a man has a right to ownership over his life and therefore also his property, because he has invested time (i.e. part of his life) in it and thereby made it an extension of his life. However, if he initiates force against and to the detriment of another man, he alienates himself from the right to that part of his life which is required to pay his debt: "Rights are not inalienable, but only the possessor of a right can alienate himself from that right – no one else can take a man's rights from him."

Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability. This concept has been recognized by libertarians as being central to the question of voluntary slavery, which dismissed as illegitimate and even self-contradictory. argues that "viewing rights as alienable is perfectly consistent with – indeed, implied by – the libertarian non-aggression principle. Under this principle, only the initiation of force is prohibited; , , or retaliatory force is not."

Various philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and , 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, in order 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.

See also

Further reading
  • Fruehwald, Edwin, A Biological Basis of Rights, 19 Southern California Interdisciplinary Law Journal 195 (2010).
  • Grotius, Hugo, The Rights Of War And Peace: Three Volume Set, 1625
  • Haakonssen, Knud, Grotius, Pufendorf and Modern Natural Law, 1999
  • Hutcheson, Francis. A System of Moral Philosophy. 1755, London.
  • Locke, John. Two Treatises on Government. 1690 (primarily the second treatise)
  • Lloyd Thomas, D.A. Locke on Government. 1995, Routledge.
  • Pufendorf, Baron Samuel von, Law of Nature and Nations, 1625
  • Tuck, Richard, Natural Rights Theories: Their Origin and Development, 1982
  • Waldron, Jeremy ed. Theories of Rights 1984, Oxford University Press.

External links

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