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Natural rights
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Some philosophers and political scientists make a distinction between natural and legal rights. Natural rights (also called moral rights or inalienable rights) are rights which are not contingent upon the laws, customs, or beliefs of a particular society or polity. In contrast, legal rights (sometimes also called civil rights or statutory rights) are rights conveyed by a particular polity, codified into legal statutes by some form of legislature, and as such are contingent upon local laws, customs, or beliefs.
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Some philosophers and political scientists make a distinction between natural and legal rights. Natural rights (also called moral rights or inalienable rights) are rights which are not contingent upon the laws, customs, or beliefs of a particular society or polity. In contrast, legal rights (sometimes also called civil rights or statutory rights) are rights conveyed by a particular polity, codified into legal statutes by some form of legislature, and as such are contingent upon local laws, customs, or beliefs. Natural rights are thus necessarily universal, whereas legal rights are culturally and politically relative.
Blurring the lines between natural and legal rights, U.S. statesman James Madison believed that some rights, such as trial by jury, are social rights, arising neither from natural law nor from positive law but from the social contract from which a government derives its authority.
Overview
The question of which (if any) rights are natural and which are merely legal is an important one in philosophy and politics. Critics of the concept of natural rights argue that the only rights that exist are legal rights, while proponents of the concept of natural rights say that documents such as the United States Declaration of Independence and the Universal Declaration of Human Rights demonstrate the usefulness of recognizing natural rights. The focus of natural rights in the United States Declaration of Independence is expressed in the legal philosophy known as Declarationism.
The theory of natural law is closely related to the theory of natural rights. During the Age of Enlightenment, natural law theory challenged the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government — and thus legal rights — in the form of classical republicanism. Conversely, the concept of natural rights is used by some anarchists to challenge the legitimacy of all such political establishments.
The idea of human rights is also closely related to that of natural rights; some recognize no difference between the two and regard both as labels for the same thing, while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights. Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The Universal Declaration of Human Rights is an important legal instrument enshrining one conception of natural rights into international soft law.
The idea that animals have natural rights is one that has gained the interest of philosophers and legal scholars in the 20th century, and as such, even on a natural rights conception of human rights, the two terms may not be synonymous.
History
While the existence of legal rights has always been uncontroversial, the idea that certain rights are natural or inalienable also has a long history dating back at least to the Stoics of Late Antiquity, and descending through the Protestant Reformation and the Age of Enlightenment to today.
Ancient history
The Stoics held that no one was a slave by their nature; slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca the Younger wrote:
Likewise, the notion of inalienable rights was found in early Islamic law and jurisprudence, which denied a ruler "the right to take away from his subjects certain rights which inhere in his or her person as a human being." Islamic rulers could not take away certain rights from their subjects on the basis that "they become rights by reason of the fact that they are given to a subject by a law and from a source which no ruler can question or alter." These ideas may have later influenced John Locke's concept of inalienable rights through his attendance of lectures given by Edward Pococke, a professor of Arabic studies.
Medieval history
Modern history
Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage" re-emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:
In 17th-century England, philosopher John Locke discussed natural rights in his work, and identified them as being "life, liberty, and estate (or property)", and argued that such fundamental rights could not be surrendered in the social contract. These ideas were 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." 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 the republic governed by Oliver Cromwell, defined freeborn rights 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 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." As 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."
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. But the same would not apply to those aspects that make one a person, wrote Hegel:
Thus 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. However, many social contract theorists reasoned 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 them from abuse, and living henceforth under the legal rights of that authority.
But 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. The de facto inalienability arguments of the Hutcheson and his predecessors provided the basis for the anti-slavery movement 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, Richard Price 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 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."
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", and in the 1776 United States Declaration of Independence, famously condensed this to:
In the nineteenth 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:
Contemporary history
Many documents now echo the phrase used in the United States Declaration of Independence. The preamble to the 1948 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." 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.
Contemporary political philosophies continuing the liberal tradition of natural rights include libertarianism, anarcho-capitalism and Objectivism, and include amongst their canon the works of authors such as Ludwig von Mises, Friedrich Hayek, Ayn Rand, and Murray Rothbard. 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."
Legal rights documents
The specific enumeration of legal rights accorded to people has historically differed greatly from one century to the next, and from one regime to the next, but nowadays is normally addressed by the constitutions of the respective nations. The following documents have each played important historical roles in establishing legal rights norms around the world.
- The Magna Carta (1215; England) required the King of England to renounce certain rights and respect certain legal procedures, and to accept that the will of the king could be bound by law.
- The Declaration of Arbroath (1320; Scotland) established the right of the people to choose a head of state (see Popular sovereignty).
- The Bill of Rights (1689; England) declared that Englishmen, as embodied by Parliament, possess certain civil and political rights.
- The Claim of Right (1689; Scotland) was one of the key documents of Scottish constitutional law.
- Virginia Statute for Religious Freedom (1785; United States) Written by Thomas Jefferson in 1779, the document asserted the right of man to form a personal relationship with God without interference by the state.
- The Declaration of the Rights of Man and of the Citizen (1789; France) was one of the fundamental documents of the French Revolution, defining a set of individual rights and collective rights of the people.
- The United States Bill of Rights (1789/1791; United States), the first ten amendments of the United States Constitution, was another influential document.
- The Universal Declaration of Human Rights (1948) is an over-arching set of standards by which governments, organisations and individuals would measure their behaviour towards each other. The preamble declares that the "...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..."
- The European Convention on Human Rights (1950; Europe) was adopted under the auspices of the Council of Europe to protect human rights and fundamental freedoms.
- The International Covenant on Civil and Political Rights (1966) is a follow-up to the Universal Declaration of Human Rights, concerning civil and political rights.
- The International Covenant on Economic, Social and Cultural Rights (1966) is another follow-up to the Universal Declaration of Human Rights, concerning economic, social and cultural rights.
- The Canadian Charter of Rights and Freedoms (1982; Canada) was created to protect the rights of Canadian citizens from actions and policies of all levels of government.
- The Charter of Fundamental Rights of the European Union (2000) is one of the most recent legal instruments concerning human rights.
Natural rights theories
There are numerous different theories of natural rights, and among the questions to which such theories posit answers are "on what basis are claims of natural rights justified?" and "what, specifically, are people's natural rights?" These questions are subsets of the fields of meta-ethics and ethical theory, respectively.
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 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.” 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.
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)
According to Hobbes, to deny this right would be absurd, just as it would be absurd to expect that carnivores might reject meat or fish stop swimming. Hobbes sharply distinguished this natural "liberty", from natural "laws" (obligations), 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 life, or taketh away the means of preserving life; and to omit, that, by which he thinketh it may best be preserved." (ibid.)
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." (ibid.)
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 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 right and wrong are rendered insignificant - "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. However, some thinkers such as Leo Strauss, maintained that Hobbes kept the primacy of natural law or moral obligation over natural rights, and thus did not fully break with medieval thought.
John Locke
John Locke (1632–1704), was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke was a major social contract thinker. He said that man's natural rights are life, liberty, and property. He greatly influenced the Revolutionary War with his writings of natural rights.
According to Locke there are three natural rights:
- Life- everyone is entitled to live once they are created.
- 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.
The social contract is a contract between a being or beings of power and their people or followers.
The King makes the laws to protect the 3 natural rights.
The people agree on the laws, but they have to follow them.
The people can be prosecuted and/or killed if they break these laws.
If the King does not follow these rules, he 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:
Debate
The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke, writing in the eighteenth century, 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 , and Burke's "Reflections on the Revolution in France"). Keeping with shift in thinking in the 19th century, Bentham famously dismissed the idea of natural rights as "nonsense on stilts".
The signers of the Declaration of Independence deemed it a "self evident truth" that all men are "". Critics, however, could argue that use of the word "Creator" signifies that these rights are based on theological principles, and might question which theological principles those are, or why those theological principles should be accepted by people who do not adhere to the religion from which they are derived.
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 social contract that rights and responsibilities are derived from a consensual contract between the government and the people is the most widely recognized alternative.
Samuel P. Huntington, an American political scientist, wrote that the "inalienable rights" argument from the Declaration of Independence was necessary because "The British were white, Anglo, and Protestant, just as we were. They had to have some other basis on which to justify independence".
Different 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 axiomatic 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. For instance, Jonathan Wallace has asserted that there is no basis on which to claim that some rights are natural, and he argued that Hobbes' account of natural rights confuses right with ability (human beings have the ability to seek only their own good and follow their nature in the same way as animals, but this does not imply that they have a right to do so). Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:
Other critics have argued that the attempt to derive rights from "natural law" or "human nature" is an example of the is-ought problem. However, the term "natural" in "natural rights" refers to the opposite of "artificial", rather than meaning "physical" as it does in the sense of ethical naturalism, which according to G.E. Moore does suffer the is-ought problem in the form of the naturalistic fallacy.
See also
Further reading
- 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. ISBN 0-415-09533-6
- 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. ISBN 0-19-875063-3
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