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Some philosophers and political scientists make a distinction between natural and legal rights.

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 (or unenumerated but implied from enumerated rights), and as such are contingent upon local laws, customs, or beliefs. In contrast, natural rights (also called moral rights or unalienable rights) are rights which are not contingent upon the laws, customs, or beliefs of a particular society or polity. 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.[1]

Contents

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 establishments.[2][3]

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.[4] 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[5], 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.

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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:

It is a mistake to imagine that slavery pervades a man's whole being; the better part of him is exempt from it: the body indeed is subjected and in the power of a master, but the mind is independent, and indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is confined.[6]

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."[7] 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.[8]

Medieval history

Modern history

Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage"[9] re-emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:

Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly. As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of every one's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force.[10]

17th-century English, philosopher John Locke discussed natural rights in his work, identifying them as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be surrendered in the social contract. 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."[11] Another 17th-century Englishman, John Lilburne (known as Freeborn John), who came into conflict with both the monarchy of King Charles I and the military dictatorship of Oliver Cromwell governed republic, argued for level human basic rights he called "freeborn rights" which he defined as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.

The distinction between alienable and unalienable rights was introduced by Francis Hutcheson in his 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."[12]

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:

The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them.[13]

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.[14] 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,

There is, at least, one right that cannot be ceded or abandoned: the right to personality...They charged the great logician [Hobbes] with a contradiction in terms. If a man could give up his personality he would cease being a moral being. ... There is no pactum subjectionis, no act of submission by which man can give up the state of free agent and enslave himself. For by such an act of renunciation he would give up that very character which constitutes his nature and essence: he would lose his humanity.[15]

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."[16] 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.[17] Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:

Neither can any state acquire such an authority over other states in virtue of any compacts or cessions. This is a case in which compacts are not binding. Civil liberty is, in this respect, on the same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practise, so neither can any civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property.[18]

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."[19] In Intellectual Origins of American Radicalism, Staughton Lynd pulled together these themes and related them to the slavery debate:

Then it turned out to make considerable difference whether one said slavery was wrong because every man has a natural right to the possession of his own body, or because every man has a natural right freely to determine his own destiny. The first kind of right was alienable: thus Locke neatly derived slavery from capture in war, whereby a man forfeited his labor to the conqueror who might lawfully have killed him; and thus Dred Scott was judged permanently to have given up his freedom. But the second kind of right, what Price called "that power of self-determination which all agents, as such, possess," was inalienable as long man remained man. Like the mind's quest for religious truth from which it was derived, self-determination was not a claim to ownership which might be both acquired and surrendered, but an inextricable aspect of the activity of being human.[20]

Meanwhile in America, Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important"[21], and in the 1776 United States Declaration of Independence, famously condensed this to:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."

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:

"The law of the Creator, which invests every human being with an inalienable title to freedom, cannot be repealed by any interior law which asserts that man is property."

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." Article 1, §1 of the California Constitution recognizes inalienable rights, and articulated some (not all) of those rights as "defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." However, there is still much dispute over which "rights" are truly natural rights and which are not, and the concept of natural or inalienable rights is still controversial to some.

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, Ayn Rand, and Murray Rothbard[citation needed]. 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."[22]

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.

Natural rights theories

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"[23].

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.” [24] 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 his life, or taketh away the means of preserving his 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 American 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 may not 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:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect — that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. ... They...consequently are instruments of injustice.

The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

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 "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".

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". 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[citation needed]. 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".[citation needed]

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).[25] Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:

We are all at a table together, deciding which rules to adopt, free from any vague constraints, half-remembered myths, anonymous patriarchal texts and murky concepts of nature. If I propose something you do not like, tell me why it is not practical, or harms somebody, or is counter to some other useful rule; but don't tell me it offends the universe.

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

References

  1. ^ 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.
  2. ^ Murray Rothbard, The Ethics of Liberty
  3. ^ Murray Rothbard, For a New Liberty
  4. ^ Jones, Peter. Rights. Palgrave Macmillan, 1994, p. 73.
  5. ^ "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", Encyclopaedia Britannica, 2007.
  6. ^ Seneca, De beneficiis, III, 20.
  7. ^ Judge Weeramantry, Christopher G. (1997), Justice Without Frontiers, Brill Publishers, pp. 8, 132, 135, ISBN 9041102418 
  8. ^ Judge Weeramantry, Christopher G. (1997), Justice Without Frontiers, Brill Publishers, pp. 8, 135, 139–40, ISBN 9041102418 
  9. ^ Davis, David Brion. The Problem of Slavery in Western Culture. Cornell University Press, 1966, p. 77.
  10. ^ Martin Luther, Concerning Secular Authority, 1523.
  11. ^ Pauline Maier,American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf, 1993, p. 134.
  12. ^ Hutcheson, Francis. A System of Moral Philosophy. London, 1755, pp. 261-2.
  13. ^ Georg W. F. Hegel, Hegel's Philosophy of Right, T.M. Knox, trans., New York: Oxford University Press, 1967 (1821), section 66.
  14. ^ Philmore, J. 1982. The Libertarian Case for Slavery: A Note on Nozick. Philosophical Forum. XIV (Fall 1982): 43-58.
  15. ^ Cassirer, Ernst. The Myth of the State. Yale University Press, 1963, p. 175
  16. ^ 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. Duke University Press, 1979, p. 67.
  17. ^ Ibid., pp. 67-68.
  18. ^ Ibid., pp. 78-79
  19. ^ 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.
  20. ^ Lynd, Staughton. Intellectual Origins of American Radicalism. Vintage Books, 1969, pp. 56-57.
  21. ^ Garry Wills, 1979. Inventing America. New York: Vintage Books, p. 213
  22. ^ "Man and Society". The Market for Liberty. pp. 11. 
  23. ^ United States Declaration of Independence
  24. ^ Lectures on the Principles of Political Obligation, T. H. Green, 1883, p.114.
  25. ^ Wallace, Jonathan (2000-04). "Natural Rights Don't Exist". The Ethical Spectacle. http://www.spectacle.org/0400/natural.html. Retrieved 2007-08-23. 

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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