Natural rights and legal rights

For other uses, see Universalism (disambiguation).

A natural right is a universal right inherent in the nature of human beings and is not contingent on ethics, human constructs, laws or beliefs. The right to breath, for example, cannot be legislated away, nor does it need to be granted on ethical grounds by a government or church.

The concept of natural law is derived from natural rights. During the Enlightenment, natural law opposed the divine right of kings, and became the basis of classical liberalism.

The concept of a natural right can be contrasted with the concept of a legal right: A natural right is one that is claimed to exist even when it is not enforced by the government or society as a whole, while a legal right is a right specifically created by the government or society, for the benefit of its members. The question of which rights are natural and which are legal is an important one in philosophy and politics. Critics of the concept of natural rights argue that all human rights are legal rights, while proponents of the concept of natural rights in countries such as the United States assert that founding documents like the American Declaration of Independence and social contracts like the Constitution of the United States demonstrate the usefulness of recognizing natural rights.

The idea of human rights descended from that of natural rights; some recognize no difference between the two and regard both as labels for the same thing while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights. Natural rights, in particular, are the rights of the individual, and considered beyond the authority of a future government or international body to dismiss.

Conceptions of natural rights

Many philosophers and statesmen have designed lists of what they believe to be natural rights; almost all include the right to life and liberty, as these are considered to be the two highest priorities.

Among statesmen, the idea that certain rights are inalienable is 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."

Among philosophers, H. L. A. Hart has argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. 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. Some thinkers like John Locke emphasized "property" as primary. However, despite Locke's influential defense of the right of revolution, Thomas Jefferson substituted "pursuit of happiness" for property in the United States Declaration of Independence. The Declaration of Independence is based on natural or "unalienable rights" as being endowed by the Divine Creator or Nature's God to every human being, arguing that it was "self-evident" truth that human beings by their very nature inherently have and seek to experience the right to life, liberty, and the pursuit of happiness. This being considered self-evident truth, like Hobbes, Locke and Jean–Jacques Rousseau — also a major social contract thinker — the right of human beings to follow their nature as a natural right antedating and not bestowed by government.

(It should be made clear on what basis these rights exist. They are, for instance, not extended to non-humans. The criteria may be based on the existence of reason.)

Thomas Hobbes

The first philosopher who fully made natural rights the source of his moral and political philosophy was Thomas Hobbes (1588–1679). Hobbes argued that it is human nature to love one's self best and seek one's own good (this is a view known as psychological egoism). Since it is unavoidable ("necessity of nature") for human beings to follow their nature, it becomes a right to do so. According to Hobbes, to deny this right is to deny that we have a right to be human, which would be absurd, just as it would be absurd to demand that carnivores reject meat or that fish stop swimming. However, this was not a right in the conventional sense of imposing obligations on others, but merely a "liberty." Therefore, we have no obligations by birth or nature, but only unlimited rights — leading to a situation known as the "war of all against all", in which human beings have to kill, steal and enslave others in order to stay alive. Hobbes reasoned that this world of chaos created by unlimited rights was highly undesirable, causing 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. This marked an important departure from medieval natural law theories which gave priority 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.

Other proponents

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 who argued that all people know what to do and why they do it therefore making sense. He said that man's natural rights are life, liberty, and property.

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.

Contemporary proponents

Critics have argued that natural rights do not exist (in the sense that all rights are invented by men and are therefore by definition "artificial"). The attempt to derive rights from "natural law" or "human nature" is an example of the is-ought problem in philosophy, and, as noted above, different philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to separate truly axiomatic rights from supposed rights, stating that any principle that requires itself to be disproved is an axiom. Critics have pointed to the lack of agreement between the proponents as evidence for the claim that the idea of natural rights is merely a political tool. For instance, Jonathan Wallace has asserted that there is no basis on which to claim that some rights are natural, and he argued that Hobbes' account of natural rights confuses right with ability (human beings have the ability to seek only their own good and follow their nature in the same way as animals, but this does not imply that they have a right to do so). Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:

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.

Jeremy Bentham, a utilitarian philosopher, famously stated:

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts.

See also

• natural person
• Leo Strauss