Rights, Natural
RIGHTS, NATURAL
RIGHTS, NATURAL. The idea of natural rights is inseparable from the doctrine that all human beings, regardless of extrinsic differences in circumstance (nationality, class, religion) or physical condition (race, gender, age, etc.), share an identical set of powers, freedoms, and/or competencies. Scholars have customarily treated natural rights theory as a hallmark of modern legal and political thought, although one with roots in preceding intellectual traditions. In particular, the idea of natural rights has been contrasted with earlier teachings about natural law that were grounded in more robust principles of reason and natural or divine teleology. Many important thinkers of early modern Europe subscribed to a version of natural law without endorsing a doctrine of natural rights.
Central to the concept of natural rights is the view that every human being enjoys a complete and exclusive dominion over his or her mental and bodily facilities—and the fruits thereof—in the form of personal property. Thus, a natural rights theory entails a conception of private ownership grounded on the subjective status of the individual human being. The rights arising from such human subjectivity are both inalienable and imprescriptible in the sense that any attempt to renounce or extinguish them would constitute at the same time the cessation of one's personhood. Thus, for example, natural rights theory renders incoherent arguments for slavery based on alleged natural inequalities of intellect or physique.
Consequently, an important feature of the fully developed idea of natural rights is its direct and immediate political bearing. Given that natural rights may not be curtailed or eliminated without the denial to a person of his or her very humanity, any government that attempts to suppress them without due process has no claim on the obedience of its citizens. Natural rights always take precedence over artificial communal or public rights that might be imposed by political institutions. In this way, the doctrine of natural rights circumscribes political power and may even generate a defense of resistance to or revolution against systems of government that violate the rights of individuals.
The assertion of the modernity of natural rights theory must be qualified by the recognition that many of its characteristic elements were present in and elaborated by earlier theorists. For instance, scholars have found in Aristotle (384–322 b.c.e.) the logical rudiments of natural rights theory, albeit imperfectly articulated and applied. The language of rights was first clearly expressed in the teachings of classical Roman lawyers, for whom ius ('right' or 'law') constituted the basis of law and persons were fundamentally bearers of rights derived from law. Likewise, medieval canon (church) lawyers and Scholastic philosophers insisted that God endowed human beings with basic rights to themselves and to those goods that they required to preserve their divinely created lives.
Many attempts have been made to identify the "first" theorist of natural rights. In addition to Aristotle, the Scholastic philosopher/theologians Jean de Paris (c. 1240–1306; also known as John of Paris), William of Ockham (c. 1285–1349), and Jean de Gerson (1363–1429) have been nominated. Several of the participants in the fourteenth-century controversy between the papacy and the members of the spiritual wing of the Franciscan Order over the status of voluntary ecclesiastical poverty also moved the debate about the naturalness of property ownership in the direction of a theory of rights. Yet in each instance, some of the ingredients central to the fully "subjective" or individualistic doctrine of natural rights doctrine associated with modern thought are absent.
It is perhaps best to examine the development of the theory of natural rights after 1450 as an incremental process. Various thinkers contributed important dimensions to its history without necessarily enunciating the idea in its final form or perhaps even appreciating the wider significance of their particular contributions. One such source may be found in the work of a group of theologians of a Thomist orientation working at the University of Paris in the later fifteenth and early sixteenth centuries, most prominently Conrad Summenhart (c. 1455–1502), John Mair (c. 1468–1550), and Jacques Almain (c. 1480–1515). In a number of writings, these authors equated ius with dominium ('lordship' or 'ownership'), which was understood to reside in people naturally and to license in them the power or faculty of acquiring those objects necessary for self-preservation. Their argument was as much theological as legal or philosophical: just as God enjoyed ultimate ownership of the earth and the rest of his creations by virtue of his will, so human beings, in whom God's image resided, could claim dominion over themselves and their property.
The Reformation brought further refinement and application of the idea of natural rights. On the Protestant side, rights theory became a major element of late sixteenth-century Huguenot efforts to ground the justification of resistance to governments that imposed doctrinal conformity upon religious dissenters. While the earliest generations of Reformers had looked toward duty to God in order to justify acts of political disobedience, a noticeable change in language and concepts occurred in the wake of the St. Bartholomew Day's Massacre of 1572. In their reactions to the massacre, Théodore de Bèze (1519–1605) and Philippe du Plessis Mornay (1549–1623; also known as Duplessis-Mornay), as well as the authors of a large body of anonymous texts, argued for a condition of natural liberty—a privilege of nature whose rightful withdrawal is impossible—that precedes the creation of political society. Hence, any subsequent government must result from, and must be consonant with, the basic natural state of humanity. And those who would use political power to deny to human beings the exercise of their liberty—including the freedom of conscience to dissent from the established Roman Church—may properly and licitly be challenged with forms of resistance to their tyranny. The Huguenots stopped short, however, of advocating popular rebellion. Instead, they looked to so-called intermediary magistrates as the appropriate instigators of resistance to tyrannical conduct. Hence, in the hands of sixteenth-century Reformers, the idea of natural rights became a stimulus for a religiopolitical movement that directly opposed forms of religious intolerance and suppression of dissent.
The Counter-Reformation produced its own version of natural rights theory that developed out of the language and concepts pioneered by the Parisian theologians Mair and Almain. This is especially evident in the work of the so-called second Scholastic thinkers associated with the School of Salamanca, such as Francisco de Vitoria (c. 1480–1546), Domingo de Soto (1494–1560), and Francisco Suárez (1548–1617). Vitoria had been trained at Paris and returned to Spain to disseminate the ideas to which he had been exposed there. Although Vitoria himself wrote nothing, leaving only lecture summaries, his immediate students and their intellectual progeny produced some of the fullest and most enthusiastic elaborations of natural rights. In particular, Vitoria and de Soto explored the complexities of rights theories, moving away from the traditional Thomistic conception of rights as objective duties required by reason. Vitoria's work seems to have contained two differing conceptions of subjective natural rights—one connected with individual dominium, the other defined in relation to communal law. Each position involved notable limitations and flaws, a fact that led de Soto to attempt to resolve them into a coherent picture of rights that incorporated both public and private dimensions. Suárez added further to the picture by identifying ius with self-preservation and drawing from this some, albeit limited, political implications. He held that a natural right existed to resist extreme forms of tyranny, construed as those circumstances in which the survival of the community as a whole was endangered. Otherwise, the misbehavior of government was to be tolerated lest communal destruction result from acts of disobedience and resistance.
While the School of Salamanca remained steeped in the neo-Aristotelian doctrines of the medieval past, other thinkers attempted to replace this framework with a paradigm for natural rights rooted purely in legal principles. Especially celebrated in this regard were Hugo Grotius (1583–1645) and John Selden (1584–1654). Grotius proposed that rights should be grounded solely upon the universality of the propriety of human self-preservation, thus placing self-interest at the center of a natural system. He reasoned that human beings enjoy dominium over those goods that are immediately necessary in order to preserve themselves: rightful private ownership is directly licensed as a natural right. Moreover, he attacked the Aristotelian doctrine of the naturalism of political society. For Grotius, social order was voluntary, and the only reason that people joined into civil society was for self-protection. As a consequence, the individual does not surrender natural rights by entering into a communal arrangement and indeed might resist a direct attack on those rights by a magistrate. While Selden enunciated a sustained critique of Grotius, he ultimately embraced an account of natural rights derived from his adversary. Selden pushed the devaluation of reason understood as a moral force with the power to bind and compel the actions of individuals. Rather, he stressed that natural rights were directly correlated to natural liberty, such that the only basis for individual obligation could be free assent to contracts and compacts, which, once agreed to, had to be maintained without exception. Hence, for Selden, unlike for Grotius, natural liberty itself could be renounced by a valid act of human will.
Selden's best-known follower was Thomas Hobbes (1588–1679), who developed the insights of the former into a powerful individualist theory of natural rights. In his major works, culminating in Leviathan (1651), Hobbes ascribes to all human beings natural liberty as well as equality, on the basis of which they are licensed to undertake whatever actions are necessary in order to preserve themselves from their fellow creatures. Such self-preservation constitutes the indispensable core of human natural rights. Adopting a position radically opposed to the Aristotelian teaching of political naturalism, Hobbes maintained that the exercise of one's natural liberty leads directly to unceasing conflict and unremitting fear, inasmuch as nature confers upon each individual the right to possess everything and no legitimate limitation on one's freedom to enjoy this right. Unalloyed nature yields a state of chaos and warfare and, as a result, a "solitary, poor, nasty, brutish, and short" life, the avoidance of which leads human beings to authorize a single sovereign ruler in order to maintain peace. The exchange of natural freedom for government-imposed order, constructed through a social compact, requires renunciation of all claims on rights that humans possess by nature (except, of course, for the right of self-preservation itself) and voluntary submission to any dictate imposed by the sovereign. In this way, Hobbes seconded Selden's defense of absolute government, yet upheld the basic right to self-preservation. Moreover, under the terms of Hobbes's absolute sovereignty, the subject was still deemed to retain the right to chose for himself concerning any and all matters about which the ruler had not explicitly legislated.
John Locke (1632–1704) crystallized the preceding conceptions of natural rights into the quintessential statement of the modern idea. He began his major work of political theory, the Two Treatises on Government (written c. 1680; published 1689), with the postulation of the divinely granted natural rights of individuals, understood in terms of the absolute right to preserve one's life and to lay claim to the goods one requires for survival. Arguing against the patriarchal doctrine of Sir Robert Filmer (c. 1588–1653), Locke insisted that no natural basis—neither paternity nor descent—justifies the submission of one person to another. Rather, all people are deemed sufficiently rational, as well as free and equal, in their natural condition that they can govern themselves according to a basic cognizance of moral (natural) law, and thus will generally respect the rights of others. In contrast to Hobbes, then, Locke maintained that the condition of perfect natural liberty does not represent a state of war. In the state of nature, human beings can enjoy unimpeded rights to acquire private property, the ownership of which is asserted on the basis of the admixture of their labor (the natural talents and industry of their bodies) with the physical world. Indeed, Locke's state of nature resembles nothing so much as a fully functioning commercial society, which has introduced a system of exchange relations and money, all perfectly consonant with the recognition of the natural rights of individuals.
For Locke, then, there is no pressing necessity for people living in the state of nature to eschew this condition for formalized communal life. Hence, should they chose to enter into bonds of civil society by means of a contract, the sole reason that they do so is to avoid the "inconveniences" and inefficiency of the pre-civil world. This does not require parties to the contract to surrender any of their natural rights. Indeed, the only government worthy of authorization is that which strictly upholds and protects the rights that persons possess by nature. According to Locke, any magistrate that systematically denies to his subjects the exercise of their natural rights to their life, liberty, and estate is tyrannical and unworthy of obedience. Locke closes the Second Treatise with a discussion of the dissolution of government. In his view, a regime that violates systematically natural rights places itself in a state of war with the members of civil society, who severally and individually may renounce allegiance to it and may vote to establish a new government. Some have viewed Locke as justifying revolution on the basis of natural rights, but his actual point seems to be less extreme: the retention of one's natural rights in civil society affords one the ability to protect oneself from those (whether housebreakers or magistrates) who would try to take one's property or limit one's proper sphere of liberty. Locke's resistance theory represents a chastened, but nonetheless genuine, defense of natural rights.
Locke's theory, then, stated an integrated position that drew upon many of the earlier strands of natural rights thought. In turn, the eighteenth century would see the extension, refinement and, in some respects, radicalization of the fundamentals of the Lockean doctrine. Locke's language was adopted, for instance, by both theorists and polemicists who sought to halt Europe's complicity in the global slave trade. Likewise, defenders of the equal rights of women to political and social power, such as Mary Wollstonecraft (1759–1797), framed their ideas in the language of rights. And critics of natural nobility and other claims to in-born human inequality invoked the universality of rights as the basis of their assertion of the equal worth and dignity of all people, regardless of birth, class, or occupation. The elaboration of the Lockean stance during the eighteenth century perhaps enjoyed its European apotheosis in the Revolutionary French Declaration of the Rights of Man and the Citizen. The Declaration, which forms perhaps the major source for all later declarations of human rights, proclaims that the aim of civil life is "the preservation of the natural and imprescriptible rights of man"—they nearly included woman, too—including political, economic, social, religious, and cultural rights as well as resistance to tyranny. Of course, Lockean natural rights received their share of criticism during the eighteenth century as well, whether from communalist democrats such as Jean-Jacques Rousseau (1712–1778) or from more individualistic proponents of political economy like Adam Smith (1723–1790). But in general, the 1700s may well be regarded as the European "century of natural rights."
See also Enlightenment ; Feminism ; Grotius, Hugo ; Hobbes, Thomas ; Locke, John ; Natural Law ; Political Philosophy ; Revolutions, Age of ; Rousseau, Jean-Jacques ; Salamanca, School of ; Scholasticism ; Smith, Adam .
BIBLIOGRAPHY
Primary Sources
Hobbes, Thomas. Leviathan. Edited by Edwin Curley. Indianapolis, 1994.
Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge, U.K., 1988.
Vitoria, Francesco de. Political Writings. Edited by Anthony Pagden and Jeremy Lawrence. Cambridge, U.K., 1991.
Secondary Sources
Brett, Annabel S. Liberty, Right, and Nature: Individual Rights in Later Scholastic Thought. Cambridge, U.K., 1997.
Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, U.K., 1996.
Miller, Fred D., Jr. Nature, Justice, and Rights in Aristotle's Politics. Oxford, 1995.
Skinner, Quentin. The Foundations of Modern Political Thought. 2 vols. Cambridge, U.K., 1978.
Tierney, Brian. The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625. Atlanta, 1997.
Tuck, Richard. Natural Rights Theories: Their Origin and Development. Cambridge, U.K., 1979.
Cary J. Nederman
Natural Rights
Natural Rights
Unlimited sovereignty and limited government
The doctrine of natural rights is properly to be understood as an aspect or feature of the modern doctrine of natural law. Natural rights (plural) are to be carefully distinguished from that natural right (singular) which is a central conception of classical, premodern political philosophy. Both the premodern and modern teachings result in judgments that some things are naturally right, or right according to nature, and that these things are intrinsically right, or right independently of opinion.
In classical political philosophy “natural right” refers to the objective rightness of the right things, whether the virtue of a soul, the correctness of an action, or the excellence of a regime. Thus Aristotle says in Politics (1323a29-33) that no one would call a man happy who was completely lacking in courage, temperance, justice, or wisdom. A man who was easily frightened, unable to restrain any impulse toward food or drink, willing to ruin his friends for a trifle, and generally senseless could not possibly lead a good life. Even though chance may occasionally prevent good actions from having their normal consequences, so that sometimes cowards fare better than brave men, courage is still objectively better than cowardice. The virtues and actions that contribute to the good life, and the activities intrinsic to the good life, are naturally right.
“Natural rights,” on the other hand, are the rights that all men possess, because of which they may be obligated to act, or to refrain from acting, in certain ways. According to the teaching developed primarily by Hobbes and Locke, there are many natural rights, but all of them are inferences from one original right, the right that each man has to preserve his life. All other natural rights, like the right to liberty and the right to property, are necessary inferences from the right of self-preservation, or are conceived as implicit in the exercise of that primary right. Similarly, the natural law founded upon natural rights consists of deductions made from the primary right and its implications. The sum of these deductions is the state of civil society. The doctrine of natural rights teaches primarily, then, that all obligation is derived from the right which every man has to preserve his own life. Conversely, it teaches that no man can be bound to regard as a duty whatever he regards as destructive to the security of his life. Thus slavery is wrong because no one can reasonably be asked to place his life at the mercy of another, and not, as in classical natural right, only when it constitutes a wrongful appropriation of one man’s life and labor by another.
From this point of view, what is intrinsically right is no longer what is required by, or what partakes of, the good life; rather, it is what is subjectively regarded by the individual as necessary to his security. The individual, abstractly considered, becomes the subject of rights, apart from any particular qualities he may have. “All men are created equal” means, among other things, that the rights each individual possesses by nature are entirely independent of whether he is strong or weak, wise or foolish, virtuous or vicious. The premodern doctrine of natural right, holding that men are obligated by what is required for their perfection or happiness, regarded the less intelligent and less virtuous as being naturally obligated to obey the more intelligent and more virtuous. This natural obligation was independent of the many prudent compromises that various circumstances might dictate—some of them very democratic compromises —by which the consent and loyalty of the less excellent might be enlisted in the service of a regime. But classical natural right was inherently aristocratic in its tendency. The modern doctrine of natural rights makes every individual equally the source of legitimate authority. Moreover, it makes the people as a whole the judge of the legitimacy of the exercise of this authority. Thus, although the doctrine of natural rights may sanction other forms of government—including limited monarchy, as the Declaration of Independence indicates—it is inherently democratic in its tendency. Classical natural right is politically comprehensive, since there is virtually no aspect of human life which does not bear upon its quality. This is indicated by Aristotle’s saying that what the law does not command, it forbids. The parallel modern maxim, exhibiting the far more limited scope of the modern state, holds that what the law does not forbid, it permits.
State and polis
The state erected upon the doctrine of natural rights tends in this way to be liberal or permissive. For the doctrine gives rise to the notion that there is a private sphere within which the activities of the individual, or at least those of his activities which do not affect the security of the equal rights of his fellow citizens, should be immune to public inquiry or public control. The activities of the state are thus directed toward providing security for life and for liberty—which are among the conditions of happiness—but not toward providing happiness itself. Each man is to be left free to seek this according to his own private opinion of what happiness is. It is for this reason that Jefferson names, not happiness, but the pursuit of happiness, as being among those rights for the sake of which man organizes civil society.
Nothing better indicates the difference between the earlier and later doctrines than their attitudes toward religion. From the point of view of classical natural right, religion is one of the most important means by which men are directed toward virtue, and hence toward temporal no less than toward eternal felicity. Accordingly, religious institutions are among the most important political institutions. The point of view of the adherent of the modern natural rights school, on the other hand, was perfectly expressed by Jefferson when he wrote, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
The classical polis, or political community, may be defined as that community which includes all other communities but is itself included in none. It is the comprehensive form of human association, and its purposes ascend from the necessary conditions of human existence—the provision of material necessities and of security from all forms of violence—to the sufficient conditions. The latter include the formation of good character in the citizens, education in the liberal arts, and participation in politics and philosophy. These are the characteristic pursuits of gentlemen, and rule by gentlemen is the characteristic solution to the political problem, according to classical natural right. The polis is a partnership in justice, but justice is essentially inferior to friendship. Friendship, writes Aristotle, seems to hold political communities together more than does justice, and legislators seem to care for it more than for justice. For when men are friends, they have no need of justice, but when they are just, they still have need of friends. This implies, among other things, that the polis, as distinct from the modern state, is a very small society. Its size is such that there is virtually no one among the citizens who cannot be either a friend, or a friend of a friend, of every other citizen. For this reason the ultimate sanctions for justice are not the penalties that can be exacted in the law courts but ostracism, formal or informal, from that fellowship in which alone the good citizen feels he can lead the good life. That is at least implied in Socrates’ apparent preference of death to exile, as expressed in Plato’s Crito.
The modern state, erected upon the doctrine of natural rights, is in principle a large society, if not a mass society. The natural limits upon the size of the polis, within which classical natural right has its proper home, are determined by human ability to participate in a common good, by face-to-face relationships. The modern state, however, is founded upon the notion of a social contract and is held together by the power of a sovereign authority to enforce the terms and consequences of that contract. Since the more powerful the sovereign is, the better he is able to perform his functions, and since increase in the size of the state generally adds to the power of the sovereign, the state thus has an inherent tendency to an almost indefinite expansion.
Sovereignty
Sovereignty, as the term has been used since Hobbes, differs radically in meaning from the corresponding term in classical political philosophy, for the same reason that polis differs from “state.” In a polis, whoever actually governs—whether the people, the rich, the nobility, or a tyrant—is the sovereign. In the United States of America, however, the governing officials are not the sovereign authority. The people of the United States is the sovereign, even though the people only acts through representatives. It is true that the logic of the notion of sovereignty would permit the people of the United States to transfer its authority to a hereditary monarch. Should it do so, however, the monarch would still represent the people, although the form of the representation would no longer be democratic or republican.
The modern concept of sovereignty can be deduced quite strictly from the proposition that all men are created equal. This proposition does not mean, as we have noted, that men are equal in virtue or intelligence, but that they are equal in certain rights. Each man has a natural right to preserve his life, and no man has a natural obligation to defer to any other man, in deciding what does, and what does not, tend to his own preservation. Government, accordingly, does not exist by nature. The state of nature is the state of men without government. In the state of nature, men’s rights are perfect, and they have no duties. The ground of sovereignty is the complete right that every man has to everything in the state of nature, a right which is unlimited because, every man being equal in authority to every other man, there is no one who can prescribe any limits to anyone else. There are limits in the state of nature to what a man may rightly intend to do, since he may not naturally or reasonably intend his own destruction. But these are limits implicit in the inclination to self-preservation, not limits upon what may be done from that inclination.
For reasons sufficiently evident, life in the state of nature, as John Locke puts it, is full of inconveniences or, in the more pungent language of Thomas Hobbes, it is nasty, brutish, and short. The remedy for the state of nature is the state of civil society, and we must consider carefully how men as equal as those in the state of nature can thus transform their condition. They can do so by consenting or agreeing, each with the other, that they will surrender the exercise of their unlimited right to be sole judges of what tends to their own preservation. This surrender must be equal by each, and it must be complete. No one in civil society can continue to exercise any part of the right he had in the state of nature to be his own master. This agreement, which is the social contract, is an agreement that is made by everyone with everyone. It transforms many isolated individuals into one people, a corporate entity. The agreement is unanimous, for the simple reason that whoever does not agree is not part of the people. Whoever stands outside the agreement is still in a state of nature with respect to the people created by the agreement.
The consequence of the social contract is that henceforward the whole power of the incorporate people shall defend the life of each one of them, instead of each one having to defend himself alone. In order for the whole to act thus, there must be a part which can represent the whole and which can decide for and command the whole. But what part is this? The answer or, more precisely, the initial answer, to this question is “the majority.” The majority is the only part which can stand for the whole as soon as the social contract has been made. Unanimity is impossible except with respect to the contract itself. And this, we have seen, is an agreement to let a part stand for the whole. The rule of a minority is inadmissible, for this would imply some reservation by the ruling minority of some of the right each possessed in the state of nature but which all are supposed equally to surrender by entering civil society. Any such reservation would void their membership in the civil society. Hence the rule of the majority is the only rule which is not inconsistent with the original natural equality of all.
Thus the natural right each individual possessed alone, the unlimited right to everything he deemed necessary to his preservation, is transformed into a legal or conventional right possessed by the whole people acting by the majority. However, just as the surrender of the individual’s right led to the right of the majority, so the majority may, according to its judgment, surrender its right to a minority. Many forms of government may be legitimate, according to the doctrine of natural rights, yet simple majoritarianism is the only form which is necessarily legitimate. Moreover, while legal or conventional sovereignty may devolve first to a majority, then to a minority, the natural right to life and liberty remains inalienable in the bosoms of individuals, whose consent to be governed is always conditional.
Nature and convention
We have seen that sovereignty, as a construction from the unlimited right of every individual in the state of nature, is itself inherently unlimited. The government of the United States, however, is a limited government, prohibited from doing many things, such as passing ex post facto laws and bills of attainder, granting patents of nobility, or establishing a state church. Yet these limits are themselves impositions by the sovereign people of the United States. The people have laid down these boundaries to government, and the people may take them away. From the point of view of the concept of sovereignty, the sovereign may do anything not naturally impossible. But the absoluteness of sovereign power is legal and hypothetical, not natural. For example, the American people may establish a state church, but they ought not to. They ought not to do anything inconsistent with their intention in forming a civil society, which intention was to overcome the discord of wills in the state of nature. Religious disestablishment is now plainly more conducive to that end than is establishment. This distinction reproduces that of the state of nature, in which nothing the individual does can be unjust, because there is no authority which can prescribe to him. Yet he ought not to act in a manner contrary to his self-preservation; for example, he ought not to be unwilling to leave the state of nature when others are willing to join with him in the agreement which produces civil society. Thus, also, the American people may do anything they decide to do, because there is no sovereign to prescribe to them. Yet they ought not to do anything harmful, or omit anything beneficial, to their self-preservation.
The incorporation of naturally discrete individuals into one people creates an artificial person. For the many to regard the decision of a part as if it were a decision of a whole involves a second element of artifice or fiction: the first is that the many are one and the second is that the part is a whole. The doctrine of natural rights logically requires employment of this twofold fiction. And the polarity of this dual fiction is anchored in a twofold nature, a nature constituted by the undeniable concrete reality of the discrete individual, at the one end, and by the equally undeniable abstract reality of the human race, as a species, at the other. “All men are created equal” at once entails propositions about each individual and about the whole human species, of which he is a part. For this reason, the logic which leads individuals out of the state of nature suggests that sovereigns—who remain in the state of nature with respect to each other—can also emerge from this state by forming a world state. Thus there is also an inherent tendency in the doctrine of natural rights toward the world state, or at least toward a world society inhabited by a comparatively few pacific sovereigns. We may observe that if the whole human race were to become incorporated into one people, then the fiction whereby the many are declared to be one would in one sense coincide with a natural reality. For the fictitious one people would then coincide with the abstract one human race. However, we may also observe that, were it to do so, the fiction that a part represented a whole would thereby become that much more fictitious.
Despite the necessity of the aforesaid fictions, individuals do not cease to be individuals in civil society. Their self-love, the foundation of their natural rights, continues to animate them. A man assaulted in the street may use violence to defend himself, in the absence of legal protection. Moreover, if the power of the sovereign should ever be perverted, so that it becomes the enemy of the people or of any part of the people, the right which has been “completely” surrendered may in fact be resumed. For the surrender was for a purpose—to secure the rights to life, liberty, and the pursuit of happiness—and whenever government becomes destructive of these ends, obedience may be withdrawn. The clear right of the people to alter or abolish governments is a constant incentive to good behavior by governments. The more a government convinces the people it is serving them well, the better they will obey it. The better they obey, the stronger the government, and the stronger the government, the better it can serve.
Unlimited sovereignty and limited government
The exercise of sovereignty is intended to be limited, moderated, and strengthened by the reason that makes sovereignty itself illimitable. For this same reason it must be indivisible. Although the political system of the United States embraces a twofold jurisdiction, of the governments of the states and of the government of the United States, this does not imply a division of sovereignty within the United States. John C. Calhoun remarked that sovereignty was like chastity, that it could not be surrendered in part. This acute witticism accurately reflects the fundamental theoretical construction presented here. As we have seen, equal individuals escape from the state of nature by equally agreeing to surrender to a sovereign the perfect freedom they possessed in that state. But just as, in the defined sense, the individual must surrender all his right to be his own master in order to gain the protection of civil society, so the members of a small civil society cannot become members of a larger civil society without making a similar surrender of sovereignty. For this reason Abraham Lincoln agreed with Calhoun that any division of sovereignty between states and nation was out of the question. But while Calhoun maintained that sovereignty had remained with the states, Lincoln insisted that it must repose in the nation, in the American people as a whole.
Certainly the Declaration of Independence, from which we have construed much of this account of natural rights teaching, supports Lincoln’s position. For it speaks emphatically of “one people” dissolving the political bonds which had hitherto connected them with Great Britain. That people was then conducting a war to preserve themselves from what they believed to be the anarchic violence of the British sovereign. It would have been inconsistent with the purpose of that “one people” to have divided themselves into 13 peoples at the same moment that they united to resist oppression. To have done so would have meant that they had deliberately reproduced the dangers of the state of nature with respect to each other at the very moment when they had combined to escape those dangers with respect to the British crown. Therefore, in 1776 the states of the union can have been sovereign only insofar as they were united, and were and are sovereign only because the people of those states were and are parts of the one, indivisible, sovereign people of the United States. To suppose otherwise would be to suppose that the people of the United States had not been formed into one people according to the principles and logic of the doctrine of natural rights. Yet the Declaration of Independence begins with the most ringing affirmation of those principles the world has ever known.
Harry V. Jaffa
[See alsoNatural law; Social contract; Sover eignty. Related material may be found inConstitutional law; Human rights; andPolitical theory.]
BIBLIOGRAPHY
Becker, Carl L. (1922) 1958 The Declaration of Independence: A Study in the History of Political Ideas.New York: Vintage.
Hawke, David 1964 A Transaction of Free Men: The Birth and Course of the Declaration of Independence.New York: Scribner.
Jaffa, Harry V. 1959 Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates. Garden City, N.Y.: Doubleday.
Jaffa, Harry V. 1965 Equality and Liberty: Theory and Practice in American Politics. New York: Oxford Univ. Press.
Jefferson, Thomas (1782)1894 Notes on the State of Virginia. Edited by Paul L. Ford. Brooklyn, N.Y.: Historical Printing Club.
Ritchie, David G. 1895 Natural Rights: A Criticism of Some Political and Ethical Conceptions. New York: Macmillan.
Strauss, Leo 1953 Natural Right and History. Univ. of Chicago Press.
Strauss, Leo; and Cropsey, Joseph (editors) 1963 History of Political Philosophy. Chicago: Rand McNally.
Natural Rights
Natural Rights
John Locke’s natural rights theory is derived from what is called natural law. It maintains that individuals enter society with basic rights, such as the right to life and liberty, which cannot be abrogated by government. According to this ethical theory, the moral standards that govern human behavior are, in some sense, objectively derived from the nature of human beings. Naturalism is thus a philosophical position that attempts to explain all phenomena and account for all values by means of strictly natural categories, as opposed to supernatural categories (i.e., God).
According to Locke, the state of nature can be understood properly as men living together according to reason. This differs from Thomas Hobbes’s conception of the state of nature, which is characterized in Leviathan (1651) as chaos and “war of all against all.” For Locke, “reason, which is the law, teaches all mankind who will but consult it, that, being all equal and independent, no one ought to harm another in his life, health, liberty or possessions” (1690). This natural moral law is the recognition of individuals’ value and their virtue as God’s creatures.
The philosophical implication of Locke’s state of nature is a set of natural laws—the law of opinion, civil law, and divine law. The law of opinion is society’s reflection of natural standards for happiness. As Locke outlines in Two Treatises of Government (1690), through nature or reason we discover moral rules mirroring God’s law. Because the natural world is created by God, and because God associates actions with pleasure (“good”) or pain (“evil”)—touching fire, for example, causes pain—the study of nature allows us to learn morality and to understand “the good.” Through an analysis of a priori morality and of “justice,” the commonwealth sets civil law, enforced by police and courts, and supplements nature with a rational law-based social theory. Locke defines ethics as involving voluntary conformity to or disagreement with rational rules or moral law; conformity is known as virtue. Divine law reveals what to do, or avoid doing, to achieve success in the afterlife. It is the standard for all law, and is revealed through reason or revelation. Its importance is that unlike the law of opinion or civil law, it provides a basis for individual morality.
Locke’s natural law implies natural rights with associated duties. Individuals have rights, and their duties are defined as protecting these rights, as well as the rights of others. One natural right that concerned Locke was the right to own private property, a right grounded in moral law. Here, Locke was concerned with relations of body (self), labor, and property. Locke’s position, derived from Hobbes, was that private ownership’s jurisdiction was granted through labor, as property is conceived of as the self in its extended form in the material world. When labor is applied to common property, the laborer came to own this property via their labor. Through this mixing of self and its interactions with the environment (i.e., a plowed field), the body’s acts are revealed, leaving traces on the material world. Through the combination of labor and common property, private property emerges. Consequently, property comes to include lives, liberty, and estates.
Moreover, Locke was concerned with freedom to worship and to have one’s voice heard in the government. Locke wrote about human rights’ inalienable character and argued that a political society rests on the individual’s consent to having laws made and enforced by society, as ruled by the majority. Through consent we assume the responsibilities and duties of citizenship. Additionally, Locke located the sovereign in the legislature—the representatives of the majority of people—and in a system based on divisions of power. Thus, property’s preservation and inalienable human rights become the impetus behind social laws and government, and subsequently, civil government and political society.
One of the main natural-rights arguments made today is the argument for a “right to life.” This holds that at a minimum level, the individual should be free from any coercion (or “harm”) that might hinder this right (such as murder). The position is based on both beneficence and a respect for human worth and dignity. Additionally, the right to control one’s property is invoked, especially when property rights are defined as including the right to one’s own body. However, the “right to life” and the “right to property” can be seen as contradictory, particularly when the latter is used to justify abortion.
Critiques of natural rights are found within discussions of individual liberty. The argument that a right exists that coincides with the nature of human beings to be free was challenged by utilitarian theories, which advocate that individuals should be free because their freedom is somehow useful for society. Émile Durkheim also presents a critique of natural rights, arguing that rights are granted by society.
SEE ALSO Civil Rights; Human Rights; Locke, John; Naturalism; Property Rights
BIBLIOGRAPHY
Beauchamp, Tom L., and LeRoy Walters. 1994. Contemporary Issues in Bioethics. 4th ed. Belmont, CA: Wadsworth.
Bentham, Jeremy. [1789] 1970. An Introduction to the Principles of Morals and Legislation, eds. J. H. Burns and H. L. A. Hart. Oxford: Oxford University Press.
Hobbes, Thomas. [1651] 1982. Leviathan, ed. C. B. MacPherson. London: Penguin Group.
Locke, John. [1690] 1952. Second Treatise of Government, ed. Thomas P. Peardon. New York: Liberal Arts Press.
Locke, John. [1690] 1988. Two Treatises of Government, ed. Peter Laslett. Cambridge, U.K.: Cambridge University Press.
Ryan Ashley Caldwell
Natural Rights
NATURAL RIGHTS
Together with the companion ideas of the state of nature and the social compact, the idea of natural rights exerted great influence during the Revolutionary era and remained extremely potent in the years of the early Republic, and in somewhat modified form, it remains important even into the twenty-first century.
prevalence of the philosophy of rights
The best-known example of a doctrine of rights is, of course, the second paragraph of the Declaration of Independence, but it is impossible to read very far in other documents and writings of the new nation without finding similar invocations of the philosophy of natural rights and the social contract. Thus Samuel Adams in his 1772 draft of "The Rights of the Colonists" begins with "The Natural Rights of the Colonists as Men." The 1774 Declaration and Resolves of the First Continental Congress declared in its first resolution the familiar triad of rights to "life, liberty and property"—rights said to be held under "the immutable laws of nature." Thomas Paine in his widely read pamphlet Common Sense (1776) appeals to "the equal rights of nature" to prove that hereditary monarchy cannot be a legitimate form of government. Some years later, during the French Revolution, Paine wrote another essay, The Rights of Man, devoted to defending the doctrine of natural rights against the critique leveled by Edmund Burke. The constitutions of the Revolutionary states contained clear references to natural-rights philosophy, with George Mason's draft of the Virginia Declaration of Rights of June 1776 being perhaps the most significant and most widely copied in the other states. Mason's version affirmed "that all men … have certain inherent natural rights…, among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." This list is obviously very close to the better known triad affirmed in Jefferson's Declaration of Independence: "that all men … are endowed by their creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness."
Although the U.S. Constitution does not contain a comparable recitation of the philosophy of rights, the reason for that is not that the drafters of the Constitution no longer thought natural rights important, but that the Constitution was a union of preexisting states that had already committed themselves to theses of natural rights in their constitutions and bills of rights. When James Madison drew up the draft for the federal Bill of Rights, he proposed that there be "prefixed to the Constitution" a statement patterned after Mason's Virginia Declaration of Rights. This proposal was not accepted, only because it was decided to append the Bill of Rights as a series of amendments following the original constitutional text, rather than, as in many of the state constitutions, to begin with a statement of principle prefacing the Constitution.
on the nature of rights
Although those who appealed to the philosophy of natural rights were otherwise as different from each other as Alexander Hamilton and Thomas Jefferson, George Mason and James Wilson, Thomas Paine and John Adams, there was a great deal of consensus on how to understand natural rights. All agreed that some rights were natural, that is to say, not derived from any human agreement, act, or law. The rights preceded law and established claims that could be raised against existing law and government, as the Americans did in their struggle against Britain. These rights were thus deemed inherent and inalienable. The rights inhered in human beings and thus did not come from an external source. Because the rights were inherent, they could not be alienated, that is, given up or taken away. These rights were also often said to come from God ("endowed by their creator … "). This phrase is not meant to deny that the rights are natural or inherent; rather, it means that the rights come to individuals with their creation, with their coming into being within a created order.
Natural rights were frequently said to derive from natural law. Nonetheless, Americans of the early national period were heirs of a conceptual evolution sponsored by the political philosophers who had developed the philosophy of rights—the Dutch philosopher Hugo Grotius and the English thinkers Thomas Hobbes and John Locke in particular—an evolution that had produced a firm theoretical distinction between a law and a right. Laws set down what must or must not be done. They are clearly directive. Rights, however, are permissive and discretionary. They establish a sphere of liberty and choice for the bearer of rights. Such rights were thus frequently spoken of as liberties. The right of free speech, to take an easy example, means that one has liberty to speak or not, as one chooses. A society organized around rights tends to be a liberal society, in the sense of leaving large areas of discretion for individuals to act as they choose.
the table of natural rights
There was also general agreement on the specific natural rights possessed by individuals, as evidenced by the similarity of lists of rights generated at the time. The first right cited in all these formulations was the right to life, the right to what is most one's own. Since life depends on the body, the right to life implies a right to bodily security, the right not to have one's body seized, invaded, controlled, or harmed by others.
The right to liberty extends the right to life. One not only possesses a right against others' interfering with one's body; one also possesses a right to exercise one's bodily and mental faculties. Liberty is in part a means toward securing life, but more than that it is the way humans express their ability to appropriate their bodies and invest them with purpose. The right to liberty expresses the self-directed nature of being human. A corollary of this right is the responsibility individuals have for their actions and for the foreseeable consequences of those actions.
The right to property involves an extension from rights in the sphere of one's own life, body, and actions to rights in the external world. It is the legal expression of the ability of individuals to make the external their own, just as they can make their bodies their own. In the context of the Revolution and early Republic, the right to property was particularly important, as can be seen in the overwhelming demand for constitutional guarantees of representation for those subject to taxes. This constitutional demand derives support from the natural right to property, since the right of others (even kings) to take property without the consent of the property owners was understood to be a violation of the right to property.
These rights together amount to an affirmation of a kind of personal sovereignty, a right to control one's person, actions, and possessions in the service of one's broader purposes. When seen as an integrated system of immunities and controls, the specific rights sum to a comprehensive right to pursue happiness, to pursue a way of life chosen by the agent as a path to happiness. Of course, this right, like all rights, is not absolute; the rights of others and the common good serve as valid limitations on personal rights.
There was also great, if not universal, agreement on who were the bearers of these rights. As the Declaration of Independence says, the truths about rights apply to "all men." This term was understood almost universally to include women and individuals of other races. In the early years of the nation it was widely recognized that slavery was a violation of natural rights, and for this reason there was a substantial movement to abolish slavery. It was also recognized that the denial of voting rights to women, for example, did not imply that women lacked natural rights. The philosophy of rights distinguished natural from civil and political rights. The first set of rights belongs universally to all humans, but the other two sets do not necessarily belong to them. It was thought that relevant to the bestowal of the latter rights were considerations other than mere personhood or membership in the species, considerations like the organization of civil society.
implications of rights
Natural rights were understood to have a number of important corollaries. The first is natural equality. Since all persons have the right to pursue happiness, to order their lives as they see fit, there can be no question that anyone possesses a natural right to rule over others. All are equal in that no one naturally has authority over another. This natural equality was also spoken of in the literature of the day as the state of nature, that is, as a state lacking any relations of legitimate authority. Authority must therefore derive from "the consent of the governed." Consent was understood to be equivalent to what was also called the social contract. Consent applied in the first instance to the formation of government and the origin of political authority, rather than to the ongoing conduct of politics. The requirement of consent derives from the primal rights, and consent to authority is given primarily to protect those rights. A further implication, then, is that if an authority does not secure but rather threatens rights, it has gone beyond its proper warrant and may be altered or abolished. From this idea flows the right of Revolution, which the colonists affirmed when they revolted.
The philosophy of rights and the ideas of a state of nature and a social contract together had a great impact on political thinking and acting in the new nation. The doctrine served as a general criterion of legitimacy, to be applied not only to the British Empire that Americans rebelled against but also to the new governments they were establishing. Under the tutelage of Thomas Paine, Americans quickly drew the conclusion that only a republican form of government could be legitimate. They concluded that all sovereign power originated in the people and must ultimately remain in the hands of the people (popular sovereignty). Beyond that, Americans perceived that many aspects of society required reordering, although they proceeded cautiously and unevenly in their efforts at reform. The American who perhaps gave the most serious thought to what would be required for a republic founded on natural rights was Thomas Jefferson, who set off to reform the laws of Virginia in a comprehensive way but was only partly successful. His proposals for revising the laws stands as the most thoroughgoing effort at effecting the implications of natural rights for the ordering of society. In his proposals he advocated abolishing slavery (because it violated natural rights), securing republican or popular government, providing basic public education for all and higher education for the most talented, allowing freedom of conscience, and abolishing feudal land laws. This list gives a brief indication of some of the grand implications that were seen to follow for society at large from a philosophy of natural rights.
foundations of rights
There was much less consensus on the basis of natural rights than on the rest of the philosophy of rights. There were a number of competing theories about the grounds of rights. Some theories derived natural rights from the moral sense; others from natural theology. Still others looked to self-ownership or human autonomy or the natural order of the passions. The disagreement over foundations became important later, but it was no impediment to agreeing on rights and their corollaries in the early years of the nation.
See alsoAntislavery; Bill of Rights; Declaration of Independence; Jefferson, Thomas; Paine, Thomas; Property; Proslavery Thought; Radicalism in the Revolution; Slavery: Slavery and the Founding Generation; Women: Rights .
bibliography
Jefferson, Thomas. Notes on the State of Virginia. New York: Norton, 1954.
Locke, John. Two Treatises of Government, and a Letter concerning Toleration. New Haven, Conn.: Yale University Press, 2003.
Paine, Thomas. Rights of Man; Common Sense; and Other Political Writings. New York: Oxford University Press, 1995.
Strauss, Leo. Natural Right and History. Chicago: University of Chicago Press, 1953.
Tierney, Brian. The Idea of Natural Rights. Atlanta, Ga.: Scholars Press, 1997.
Tuck, Richard. Natural Rights Theories: Their Origins and Development. Cambridge, U.K.: Cambridge University Press, 1979.
Zuckert, Michael P. Natural Rights and the New Republicanism. Princeton, N.J.: Princeton University Press, 1994.
——. The Natural Rights Republic. Notre Dame, Ind.: University of Notre Dame Press, 1996.
Michael P. Zuckert
Natural Rights
NATURAL RIGHTS
NATURAL RIGHTS. Natural rights, according to American tradition, are those rights granted to human-kind by their Creator, or as Jefferson put it in the Declaration of Independence—essentially borrowing from John Locke's Second Treatise on Government (1690)—the rights accorded by "Nature and Nature's God." In the Declaration, these are described as "unalienable" rights, and include the recognition that "all men are created equal" and that all have rights to "Life, Liberty, and the Pursuit of Happiness."
Locke himself formulated man's basic natural right as "to preserve his property, that is, his life, liberty and estate," and both Jefferson's and Locke's ideas found echoes in some of the early American state constitutions. The Pennsylvania Constitution of 1776 was typical. It declared "That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." The Pennsylvania document added to this enumeration of its citizens' rights, among others, the "natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding," and it made clear that "the community hath an indubitable, unalienable and indefeasible right to reform, alter or abolish government, in such manner as shall be by that community judged most conducive to the public weal." Natural rights, then, protect particular individual freedoms, but also give the community the right to self-government, so long as that government continues to protect and preserve the basic natural rights of individuals. When government fails to protect those rights, revolution—as Locke and the Declaration affirmed—is justified.
While natural rights are, in theory at least, the gift of a benevolent creator, American documents of fundamental law, following the English example, have tended to enumerate these basic protections against the government in documents called "bills of rights." The most important consists of the first ten amendments to the U.S. Constitution, passed in 1791. These include, among others, rights of freedom of religion, freedom of speech, freedom of the press, freedom from unreasonable searches and seizures, rights to trial by jury, and the guarantee that no one will be deprived of life, liberty, or property without due process of law.
Over the course of American history there has been a great deal of debate over whether the broad generalizations regarding natural rights in the Declaration of Independence ought to be regarded as incorporated within the more specific guarantees of the U.S. Constitution, or even regarded as "supra-Constitutional principles" that are nevertheless binding on all American governments. The suggestion that there are such principles can be found in some early American federal and state cases. For example, in Calder v. Bull (1798) U.S. Supreme Court Justice Samuel Chase declares that whether or not there are express prohibitions against it in a Constitution, no "republican" government can make a person judge and party in his own case, pass a law that makes criminal an act legal when committed, or take one person's property without compensation and grant it to another. Similarly, in Currie's Administrators v. The Mutual Assurance Society (1809), Virginia supreme court judge Spencer Roane observed that "all free governments" were instituted for the protection of "our rights of person and property," and that the powers of legislatures are bounded by "the principles and provisions of the constitution and bill of rights, and by those great rights and principles, for the preservation of which all just governments are founded."
The sentiments in the Declaration that all men are created equal led the abolitionists, in the antebellum years, to resist the American law of slavery and to argue, based on natural rights, that the provisions in the Constitution that supported slavery were null and void. This view was rejected by Chief Justice Roger Taney in the Dred Scott Case of 1857, in which he essentially ruled that the property rights of the slaveholders trumped any words of the Declaration. Taney's view was repudiated by many speeches of Abraham Lincoln, most notably in his Gettysburg Address (1863), where he reaffirmed the idea that the United States had been "conceived in liberty, and dedicated to the proposition that all men are created equal" and that, further, the Civil War was being fought to reaffirm those principles and to preserve "government of the people, for the people, by the people." The Thirteenth Amendment's abolition of slavery and the Fourteenth Amendment's guarantee that state governments may not deprive anyone of the "equal protection of the laws" have come to be viewed as vital protections of the natural rights of Americans.
Thus, in the 1950s and 1960s the Supreme Court under Earl Warren, chiefly employing the Fourteenth Amendment, rendered a series of decisions, based on simple principles of equality and individual rights, that were viewed by their champions as essential implementations of justice or natural rights. These included prohibitions on racial segregation in schools and public services, prohibitions on mandatory school prayer and Bible reading, guarantees that state legislatures had to be organized around the principle of "one man, one vote," and restrictions on police practices that encroached on the rights of the accused. None of these decisions was dictated by the text of the Constitution, or by the historical understanding of its provisions, but all had in common an expansive and egalitarian notion of individual rights quite consistent with Lincoln's address, if not Jefferson's Declaration.
In the late twentieth and early twenty-first century, jurisprudential approaches based on natural rights were falling out of favor at the federal level because they gave judges too much discretion. Thus, Clarence Thomas's nomination to the Supreme Court foundered briefly because he had given speeches indicating a commitment to the implementation of the kind of "natural law" thinking in the Declaration. While the Supreme Court seemed to be shying away from the expansive implementation of individual natural rights, however, it was becoming increasingly common for state court judges to reject civil justice reform efforts of state legislatures on the grounds that they interfered with state constitutional guarantees of natural rights such as the right to trial by jury or to enjoy the benefits of the separation of governmental powers. Finally, the revolutionary American ideas of natural rights were being metamorphosed or superseded in international law by conceptions of human rights. These were often invoked by insurgents who sought to throw off oppressive governments and by countries, including the United States, that sought, often in concert, to intervene in other sovereign nations' affairs where human rights had been infringed.
BIBLIOGRAPHY
Gerber, Scott Douglas. To Secure These Rights: The Declaration of Independence and Constitutional Interpretation. New York: New York University Press, 1995.
Jaffa, Harry V. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War. Lanham, Md.: Rowman and Little-field, 2000.
Perry, Michael J. The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary. New Haven, Conn.: Yale University Press, 1982.
Presser, Stephen B. "Liberty under Law under Siege" ORBIS: A Journal of World Affairs 45 (2001): 357–369.
———, and Jamil S. Zainaldin. Law and Jurisprudence in American History. 4th ed. St. Paul, Minn.: West Group, 2000
Stephen B.Presser