Natural rights
Encyclopedia
Natural and legal rights are two types of rights theoretically distinct according to philosophers
and political scientists
. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable. In contrast, legal rights are those bestowed on to a person by the law
of aparticular political and legal system, and therefore relative
to specific cultures and governments.
al, statutory
, regulatory, contract
ual, common-law
, or conferred by international human rights law
. Legal rights are almost always qualified, whether by implication, by the law which created the right itself or by legal rights held by others. Legal rights can be enforced in courts of law against other who has infringed it. The right may be enforced by a court order
or injunction
prohibiting the other person or persons from infringing a right, by the awarding of money to compensate the holder of the right. If a person's right to liberty is infringed he or she may bring an action of habeas corpus
so that a court can order his or her release. The owner of the copyright
in a work may seek monetary compensation
against someone who copied the work without permission. A landowner whose land is being used without his or her permission may bring an action for trespass
. A worker may sue his or her employer for breach of contract if the employer refuses to pay the employee's wages.
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.
The idea of human rights
is also closely related to that of natural rights; some recognize no difference between the two and regard both as labels for the same thing, while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights. Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The Universal Declaration of Human Rights
is an important legal instrument
enshrining one conception of natural rights into international soft law
.
The legal philosophy known as Declarationism
seeks to incorporate the natural rights philosophy of the United States Declaration of Independence
into the body of American case law on a level with the United States Constitution
.
The idea that animals have natural rights
is one that has gained the interest of philosophers and legal scholars in the 20th century, and as such, even on a natural rights conception of human rights, the two terms may not be synonymous.
and Catholic law
of the early Middle Ages
, and descending through the Protestant Reformation
and the Age of Enlightenment
to today.
wrote:
Of fundamental importance to the development of the idea of natural rights was the emergence of the idea of natural human equality. As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero
and Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it." Cicero argues in De Legibus
that "we are born for Justice, and that right is based, not upon's opinions, but upon Nature."
In Confucian thought, it has traditionally been held that all men are born equal.
doctrine of liberty of conscience. Martin Luther
wrote:
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
. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason
stated in his draft for the Virginia Declaration of Rights
, "all men are born equally free," and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity." Another 17th-century Englishman, John Lilburne
(known as Freeborn John), who came into conflict with both the monarchy of King Charles I
and the military dictatorship
of 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 Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the Declaration of Independence, stating: “For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. . . . Unalienable Rights are essential Limitations in all Governments.” However, Hutcheson placed clear limits on his notion of unalienable rights, declaring that “there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest publick Good." Hutcheson elaborated on this idea of unalienable rights in his A System of Moral Philosophy (1755), based on the Reformation
principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable." As Hutcheson wrote, "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."
In the German Enlightenment
, Hegel gave a highly developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. But the same would not apply to those aspects that make one a person, wrote Hegel:
Thus in discussion of social contract
theory, "inalienable rights" were said to be those rights that could not be surrendered by citizens to the sovereign. Such rights were thought to be natural rights, independent of positive law. However, many social contract theorists reasoned that in the natural state
only the strongest could benefit from their rights. Thus people form an implicit social contract
, ceding their natural rights to the authority to protect them from abuse, and living henceforth under the legal rights of that authority.
But many historical apologies for slavery and illiberal government were based on explicit or implicit voluntary contracts to alienate any "natural rights" to freedom and self-determination
. The de facto inalienability arguments of the Hutcheson and his predecessors provided the basis for the anti-slavery movement
to argue not simply against involuntary slavery but against any explicit or implied contractual forms of slavery. Any contract that tried to legally alienate such a right would be inherently invalid. Similarly, the argument was used by the democratic movement to argue against any explicit or implied social contracts of subjection (pactum subjectionis) by which a people would supposedly alienate their right of self-government to a sovereign as, for example, in Leviathan
by Thomas Hobbes
. According to Ernst Cassirer
,
These themes converged in the debate about American Independence. While Jefferson was writing the Declaration of Independence, Richard Price
in England sided with the Americans' claim "that Great Britain is attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title." Price again based the argument on the de facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which gives us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause. Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:
Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and again restated the de facto basis for the argument that the "liberty of men as agents is that power of self-determination which all agents, as such, possess."
In Intellectual Origins of American Radicalism, Staughton Lynd
pulled together these themes and related them to the slavery debate:
Meanwhile in America, Thomas Jefferson
"took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important", and in the 1776 United States Declaration of Independence
, famously condensed this to:
In the nineteenth century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U.S. constitution recognized and protected slavery. As a lawyer, future Chief Justice
Salmon P. Chase
argued before the Supreme Court in the case of John Van Zandt
, who had been charged with violating the Fugitive Slave Act, that:
. 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.
Erich Fromm
argued that some powers over human beings could be wielded only by God, and that if there were no God, no human beings could wield these powers.
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 Robert Nozick
, Ludwig von Mises
, Ayn Rand
, and Murray Rothbard
. A libertarian view of inalienable rights is laid out in Morris and Linda Tannehill's The Market for Liberty
, which claims that a man has a right to ownership over his life and therefore also his property, because he has invested time (i.e. part of his life) in it and thereby made it an extension of his life. However, if he initiates force against and to the detriment of another man, he alienates himself from the right to that part of his life which is required to pay his debt: "Rights are not inalienable, but only the possessor of a right can alienate himself from that right – no one else can take a man's rights from him."
philosophical reasoning or religious principles. For example, Immanuel Kant
claimed to derive natural rights through "reason" alone. The Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are ... endowed by their Creator with certain unalienable Rights".
Likewise, different philosophers and statesmen have designed different lists of what they believe to be natural rights; almost all include the right to life
and liberty
as the two highest priorities. H. L. A. Hart
argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. T. H. Green argued that “if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life.” John Locke
emphasized "life, liberty and property" as primary. However, despite Locke's influential defense of the right of revolution
, Thomas Jefferson
substituted "pursuit of happiness" in place of "property" in the United States Declaration of Independence
.
. 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.
, liberty
, and property
. It was once conventional wisdom that Locke greatly influenced the American Revolutionary War
with his writings of natural rights, but this claim has been the subject of protracted dispute in recent decades. For example, the historian Ray Forrest Harvey declared that Jefferson and Locke were at "two opposite poles" in their political philosophy, as evidenced by Jefferson’s use in the Declaration of Independence of the phrase "pursuit of happiness" instead of "property." More recently, the eminent legal historian John Phillip Reid has deplored contemporary scholars’ "misplaced emphasis on John Locke," arguing that American revolutionary leaders saw Locke as a commentator on established constitutional principles. Thomas Pangle
has defended Locke's influence on the Founding, claiming that historians who argue to the contrary either misrepresent the classical republican alternative to which they say the revolutionary leaders adhered, do not understand Locke, or point to someone else who was decisively influenced by Locke. This position has also been sustained by Michael Zuckert.
According to Locke there are three natural rights:
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 three 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.
(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:
, which Murray Rothbard
dismissed as illegitimate and even self-contradictory. Stephan Kinsella
argues that "viewing rights as alienable is perfectly consistent with—indeed, implied by—the libertarian non-aggression principle
. Under this principle, only the initiation of force is prohibited; defensive, restitutive, or retaliatory force is not."
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". By way of contrast to the views of Burke and Bentham, the leading American revolutionary scholar James Wilson
condemned Burke's view as "tyranny."
The signers of the Declaration of Independence deemed it a "self evident truth" that all men are "endowed by their Creator with certain unalienable Rights". 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. The signers did not all, however, share the same religion.
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. [Advocates for the Declaration's adoption] had to have some other basis on which to justify independence".
Different philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to separate truly axiom
atic rights from supposed rights, stating that any principle that requires itself to be disproved is an axiom. Critics have pointed to the lack of agreement between the proponents as evidence for the claim that the idea of natural rights is merely a political tool. For instance, Jonathan Wallace has asserted that there is no basis on which to claim that some rights are natural, and he argued that Hobbes' account of natural rights confuses right with ability (human beings have the ability to seek only their own good and follow their nature in the same way as animals, but this does not imply that they have a right to do so). Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:
Other critics have argued that the attempt to derive rights from "natural law" or "human nature" is an example of the is-ought problem
. However, the term "natural" in "natural rights" refers to the opposite of "artificial", rather than meaning "physical" as it does in the sense of ethical naturalism
, which according to G.E. Moore does suffer the is-ought problem in the form of the naturalistic fallacy
.
Hugh Gibbons has proposed a descriptive argument based on human biology. He claims that Human Beings were other-regarding as a matter of necessity, in order to avoid the costs of conflict. Over time they developed expectations that individuals would act in certain ways which were then prescribed by society (duties of care etc.) and that eventually crystallized into actionable rights.
There is also debate as to whether all rights are either natural or legal. Fourth president of the United States James Madison
, while representing Virginia in the House of Representatives, believed that there are rights, such as trial by jury
, that are social rights
, arising neither from natural law
nor from positive law
(which are the basis of natural and legal rights respectively) but from the social contract
from which a government derives its authority.
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
and political scientists
Political science
Political Science is a social science discipline concerned with the study of the state, government and politics. Aristotle defined it as the study of the state. It deals extensively with the theory and practice of politics, and the analysis of political systems and political behavior...
. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable. In contrast, legal rights are those bestowed on to a person by the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of aparticular political and legal system, and therefore relative
Moral relativism
Moral relativism may be any of several descriptive, meta-ethical, or normative positions. Each of them is concerned with the differences in moral judgments across different people and cultures:...
to specific cultures and governments.
Overview
Legal rights may be constitutionConstitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al, statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, regulatory, contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
ual, common-law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, or conferred by international human rights law
International human rights law
International human rights law refers to the body of international law designed to promote and protect human rights at the international, regional and domestic levels...
. Legal rights are almost always qualified, whether by implication, by the law which created the right itself or by legal rights held by others. Legal rights can be enforced in courts of law against other who has infringed it. The right may be enforced by a court order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
or injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
prohibiting the other person or persons from infringing a right, by the awarding of money to compensate the holder of the right. If a person's right to liberty is infringed he or she may bring an action of habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
so that a court can order his or her release. The owner of the copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
in a work may seek monetary compensation
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
against someone who copied the work without permission. A landowner whose land is being used without his or her permission may bring an action for trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
. A worker may sue his or her employer for breach of contract if the employer refuses to pay the employee's wages.
The theory of natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
is closely related to the theory of natural rights. During the Age of Enlightenment
Age of Enlightenment
The Age of Enlightenment was an elite cultural movement of intellectuals in 18th century Europe that sought to mobilize the power of reason in order to reform society and advance knowledge. It promoted intellectual interchange and opposed intolerance and abuses in church and state...
, natural law theory challenged the divine right of kings
Divine Right of Kings
The divine right of kings or divine-right theory of kingship is a political and religious doctrine of royal and political legitimacy. It asserts that a monarch is subject to no earthly authority, deriving his right to rule directly from the will of God...
, and became an alternative justification for the establishment of a social contract
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
, positive law
Positive law
Positive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group...
, and government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
— and thus legal rights — in the form of classical republicanism
Classical republicanism
Classical republicanism is a form of republicanism developed in the Renaissance inspired by the governmental forms and writings of classical antiquity. The earliest examples of the school were classical writers such as Aristotle, Polybius, and Cicero...
. Conversely, the concept of natural rights is used by some anarchists
Anarchism
Anarchism is generally defined as the political philosophy which holds the state to be undesirable, unnecessary, and harmful, or alternatively as opposing authority in the conduct of human relations...
to challenge the legitimacy of all such establishments.
The idea of human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
is also closely related to that of natural rights; some recognize no difference between the two and regard both as labels for the same thing, while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights. Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
is an important legal instrument
Legal instrument
Legal instrument is a legal term of art that is used for any formally executed written document that can be formally attributed to its author, records and formally expresses a legally enforceable act, process, or contractual duty, obligation, or right, and therefore evidences that act, process, or...
enshrining one conception of natural rights into international soft law
Soft law
The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditionallaw, often contrasted with soft law by being referred to as "hard law"...
.
The legal philosophy known as Declarationism
Declarationism
Declarationism is a legal philosophy that incorporates the United States Declaration of Independence into the body of case law on level with the United States Constitution. It holds that the Declaration is a natural law document and so that natural law has a place within American jurisprudence. Its...
seeks to incorporate the natural rights philosophy of the United States Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
into the body of American case law on a level with the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
.
The idea that animals have natural rights
Animal rights
Animal rights, also known as animal liberation, is the idea that the most basic interests of non-human animals should be afforded the same consideration as the similar interests of human beings...
is one that has gained the interest of philosophers and legal scholars in the 20th century, and as such, even on a natural rights conception of human rights, the two terms may not be synonymous.
History
While the existence of legal rights has always been uncontroversial, the idea that certain rights are natural or inalienable also has a long history dating back at least to the Stoics of late AntiquityLate Antiquity
Late Antiquity is a periodization used by historians to describe the time of transition from Classical Antiquity to the Middle Ages, in both mainland Europe and the Mediterranean world. Precise boundaries for the period are a matter of debate, but noted historian of the period Peter Brown proposed...
and Catholic law
Thomism
Thomism is the philosophical school that arose as a legacy of the work and thought of St. Thomas Aquinas, philosopher, theologian, and Doctor of the Church. In philosophy, his commentaries on Aristotle are his most lasting contribution...
of the early Middle Ages
Middle Ages
The Middle Ages is a periodization of European history from the 5th century to the 15th century. The Middle Ages follows the fall of the Western Roman Empire in 476 and precedes the Early Modern Era. It is the middle period of a three-period division of Western history: Classic, Medieval and Modern...
, and descending through the Protestant Reformation
Protestant Reformation
The Protestant Reformation was a 16th-century split within Western Christianity initiated by Martin Luther, John Calvin and other early Protestants. The efforts of the self-described "reformers", who objected to the doctrines, rituals and ecclesiastical structure of the Roman Catholic Church, led...
and the Age of Enlightenment
Age of Enlightenment
The Age of Enlightenment was an elite cultural movement of intellectuals in 18th century Europe that sought to mobilize the power of reason in order to reform society and advance knowledge. It promoted intellectual interchange and opposed intolerance and abuses in church and state...
to today.
Ancient history
The Stoics held that no one was a slave by their nature; slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca the YoungerSeneca the Younger
Lucius Annaeus Seneca was a Roman Stoic philosopher, statesman, dramatist, and in one work humorist, of the Silver Age of Latin literature. He was tutor and later advisor to emperor Nero...
wrote:
Of fundamental importance to the development of the idea of natural rights was the emergence of the idea of natural human equality. As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero
Cicero
Marcus Tullius Cicero , was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He came from a wealthy municipal family of the equestrian order, and is widely considered one of Rome's greatest orators and prose stylists.He introduced the Romans to the chief...
and Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it." Cicero argues in De Legibus
De Legibus
The de Legibus is a dialogue written by Marcus Tullius Cicero during the last years of the Roman Republic. It bears the same name as Plato’s famous dialogue, The Laws...
that "we are born for Justice, and that right is based, not upon's opinions, but upon Nature."
In Confucian thought, it has traditionally been held that all men are born equal.
Modern history
Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage" re-emerged in the ReformationProtestant Reformation
The Protestant Reformation was a 16th-century split within Western Christianity initiated by Martin Luther, John Calvin and other early Protestants. The efforts of the self-described "reformers", who objected to the doctrines, rituals and ecclesiastical structure of the Roman Catholic Church, led...
doctrine of liberty of conscience. Martin Luther
Martin Luther
Martin Luther was a German priest, professor of theology and iconic figure of the Protestant Reformation. He strongly disputed the claim that freedom from God's punishment for sin could be purchased with money. He confronted indulgence salesman Johann Tetzel with his Ninety-Five Theses in 1517...
wrote:
English people
The English are a nation and ethnic group native to England, who speak English. The English identity is of early mediaeval origin, when they were known in Old English as the Anglecynn. England is now a country of the United Kingdom, and the majority of English people in England are British Citizens...
, philosopher John Locke
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
discussed natural rights
Natural rights
Natural and legal rights are two types of rights theoretically distinct according to philosophers and political scientists. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable...
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
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason
George Mason
George Mason IV was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention...
stated in his draft for the Virginia Declaration of Rights
Virginia Declaration of Rights
The Virginia Declaration of Rights is a document drafted in 1776 to proclaim the inherent rights of men, including the right to rebel against "inadequate" government...
, "all men are born equally free," and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity." Another 17th-century Englishman, John Lilburne
John Lilburne
John Lilburne , also known as Freeborn John, was an English political Leveller before, during and after English Civil Wars 1642-1650. He coined the term "freeborn rights", defining them as rights with which every human being is born, as opposed to rights bestowed by government or human law...
(known as Freeborn John), who came into conflict with both the monarchy of King Charles I
Charles I of England
Charles I was King of England, King of Scotland, and King of Ireland from 27 March 1625 until his execution in 1649. Charles engaged in a struggle for power with the Parliament of England, attempting to obtain royal revenue whilst Parliament sought to curb his Royal prerogative which Charles...
and the military dictatorship
Military dictatorship
A military dictatorship is a form of government where in the political power resides with the military. It is similar but not identical to a stratocracy, a state ruled directly by the military....
of Oliver Cromwell
Oliver Cromwell
Oliver Cromwell was an English military and political leader who overthrew the English monarchy and temporarily turned England into a republican Commonwealth, and served as Lord Protector of England, Scotland, and Ireland....
governed republic, argued for level human basic rights he called "freeborn rights
Freeborn
"Freeborn" is a term associated with political agitator John Lilburne , a member of the Levellers, a 17th-century English political party. As a word, "freeborn" means to be born free, rather than to be born in slavery or bondage or vassalage...
" 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
Francis Hutcheson (philosopher)
Francis Hutcheson was a philosopher born in Ireland to a family of Scottish Presbyterians who became one of the founding fathers of the Scottish Enlightenment....
. In his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the Declaration of Independence, stating: “For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. . . . Unalienable Rights are essential Limitations in all Governments.” However, Hutcheson placed clear limits on his notion of unalienable rights, declaring that “there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest publick Good." Hutcheson elaborated on this idea of unalienable rights in his A System of Moral Philosophy (1755), based on the Reformation
Protestant Reformation
The Protestant Reformation was a 16th-century split within Western Christianity initiated by Martin Luther, John Calvin and other early Protestants. The efforts of the self-described "reformers", who objected to the doctrines, rituals and ecclesiastical structure of the Roman Catholic Church, led...
principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable." As Hutcheson wrote, "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."
In the German Enlightenment
Age of Enlightenment
The Age of Enlightenment was an elite cultural movement of intellectuals in 18th century Europe that sought to mobilize the power of reason in order to reform society and advance knowledge. It promoted intellectual interchange and opposed intolerance and abuses in church and state...
, Hegel gave a highly developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. But the same would not apply to those aspects that make one a person, wrote Hegel:
Thus in discussion of social contract
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
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
State of nature
State of nature is a term in political philosophy used in social contract theories to describe the hypothetical condition that preceded governments...
only the strongest could benefit from their rights. Thus people form an implicit social contract
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
, 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
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
. The de facto inalienability arguments of the Hutcheson and his predecessors provided the basis for the anti-slavery movement
Abolitionism
Abolitionism is a movement to end slavery.In western Europe and the Americas abolitionism was a movement to end the slave trade and set slaves free. At the behest of Dominican priest Bartolomé de las Casas who was shocked at the treatment of natives in the New World, Spain enacted the first...
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
Leviathan (book)
Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil — commonly called simply Leviathan — is a book written by Thomas Hobbes and published in 1651. Its name derives from the biblical Leviathan...
by Thomas Hobbes
Thomas Hobbes
Thomas Hobbes of Malmesbury , in some older texts Thomas Hobbs of Malmsbury, was an English philosopher, best known today for his work on political philosophy...
. According to Ernst Cassirer
Ernst Cassirer
Ernst Cassirer was a German philosopher. He was one of the major figures in the development of philosophical idealism in the first half of the 20th century...
,
These themes converged in the debate about American Independence. While Jefferson was writing the Declaration of Independence, Richard Price
Richard Price
Richard Price was a British moral philosopher and preacher in the tradition of English Dissenters, and a political pamphleteer, active in radical, republican, and liberal causes such as the American Revolution. He fostered connections between a large number of people, including writers of the...
in England sided with the Americans' claim "that Great Britain is attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title." Price again based the argument on the de facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which gives us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause. Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:
Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and again restated the de facto basis for the argument that the "liberty of men as agents is that power of self-determination which all agents, as such, possess."
In Intellectual Origins of American Radicalism, Staughton Lynd
Staughton Lynd
Staughton Craig Lynd is an American conscientious objector, Quaker, peace activist and civil rights activist, tax resister, historian, professor, author and lawyer. His involvement in social justice causes has brought him into contact with some of the nation's most influential activists, including...
pulled together these themes and related them to the slavery debate:
Meanwhile in America, Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
"took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important", and in the 1776 United States Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
, famously condensed this to:
In the nineteenth century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U.S. constitution recognized and protected slavery. As a lawyer, future Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Salmon P. Chase
Salmon P. Chase
Salmon Portland Chase was an American politician and jurist who served as U.S. Senator from Ohio and the 23rd Governor of Ohio; as U.S. Treasury Secretary under President Abraham Lincoln; and as the sixth Chief Justice of the United States Supreme Court.Chase was one of the most prominent members...
argued before the Supreme Court in the case of John Van Zandt
John Van Zandt
John Van Zandt was an abolitionist who aided the Underground Railroad resistance movement in Ohio after having been a slaveholder in Kentucky. Sued for monetary damages by a slaveholder whose escaped slaves he aided, he was a party to Jones v. Van Zandt , a case by which abolitionists intended to...
, who had been charged with violating the Fugitive Slave Act, that:
Contemporary history
Many documents now echo the phrase used in the United States Declaration of IndependenceUnited States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
. The preamble to the 1948 Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
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
California Constitution
The document that establishes and describes the duties, powers, structure and function of the government of the U.S. state of California. The original constitution, adopted in November 1849 in advance of California attaining U.S. statehood in 1850, was superseded by the current constitution, which...
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
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
." 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.
Erich Fromm
Erich Fromm
Erich Seligmann Fromm was a Jewish German-American social psychologist, psychoanalyst, sociologist, humanistic philosopher, and democratic socialist. He was associated with what became known as the Frankfurt School of critical theory.-Life:Erich Fromm was born on March 23, 1900, at Frankfurt am...
argued that some powers over human beings could be wielded only by God, and that if there were no God, no human beings could wield these powers.
Contemporary political philosophies continuing the liberal
Classical liberalism
Classical liberalism is the philosophy committed to the ideal of limited government, constitutionalism, rule of law, due process, and liberty of individuals including freedom of religion, speech, press, assembly, and free markets....
tradition of natural rights include libertarianism
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
, anarcho-capitalism
Anarcho-capitalism
Anarcho-capitalism is a libertarian and individualist anarchist political philosophy that advocates the elimination of the state in favour of individual sovereignty in a free market...
and Objectivism
Objectivism (Ayn Rand)
Objectivism is a philosophy created by the Russian-American philosopher and novelist Ayn Rand . Objectivism holds that reality exists independent of consciousness, that human beings have direct contact with reality through sense perception, that one can attain objective knowledge from perception...
, and include amongst their canon the works of authors such as Robert Nozick
Robert Nozick
Robert Nozick was an American political philosopher, most prominent in the 1970s and 1980s. He was a professor at Harvard University. He is best known for his book Anarchy, State, and Utopia , a right-libertarian answer to John Rawls's A Theory of Justice...
, Ludwig von Mises
Ludwig von Mises
Ludwig Heinrich Edler von Mises was an Austrian economist, philosopher, and classical liberal who had a significant influence on the modern Libertarian movement and the "Austrian School" of economic thought.-Biography:-Early life:...
, Ayn Rand
Ayn Rand
Ayn Rand was a Russian-American novelist, philosopher, playwright, and screenwriter. She is known for her two best-selling novels The Fountainhead and Atlas Shrugged and for developing a philosophical system she called Objectivism....
, and Murray Rothbard
Murray Rothbard
Murray Newton Rothbard was an American author and economist of the Austrian School who helped define capitalist libertarianism and popularized a form of free-market anarchism he termed "anarcho-capitalism." Rothbard wrote over twenty books and is considered a centrally important figure in the...
. A libertarian view of inalienable rights is laid out in Morris and Linda Tannehill's The Market for Liberty
The Market for Liberty
The Market for Liberty is an anarcho-capitalist book written by Linda and Morris Tannehill, which according to Karl Hess has become "something of a classic." It was preceded by the self-published Liberty via the Market in 1969. Mary Ruwart credits the Tannehills and their book with winning her over...
, which claims that a man has a right to ownership over his life and therefore also his property, because he has invested time (i.e. part of his life) in it and thereby made it an extension of his life. However, if he initiates force against and to the detriment of another man, he alienates himself from the right to that part of his life which is required to pay his debt: "Rights are not inalienable, but only the possessor of a right can alienate himself from that right – no one else can take a man's rights from him."
Legal rights documents
The specific enumeration of legal rights accorded to people has historically differed greatly from one century to the next, and from one regime to the next, but nowadays is normally addressed by the constitutions of the respective nations. The following documents have each played important historical roles in establishing legal rights norms around the world.- The Magna CartaMagna CartaMagna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
(1215; EnglandEnglandEngland is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
) required the King of England to renounce certain rights and respect certain legal procedures, and to accept that the will of the king could be bound by lawEnglish lawEnglish law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. - The Declaration of ArbroathDeclaration of ArbroathThe Declaration of Arbroath is a declaration of Scottish independence, made in 1320. It is in the form of a letter submitted to Pope John XXII, dated 6 April 1320, intended to confirm Scotland's status as an independent, sovereign state and defending Scotland's right to use military action when...
(1320; ScotlandScotlandScotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
) established the right of the people to choose a head of state (see Popular sovereigntyPopular sovereigntyPopular sovereignty or the sovereignty of the people is the political principle that the legitimacy of the state is created and sustained by the will or consent of its people, who are the source of all political power. It is closely associated with Republicanism and the social contract...
). - The Bill of RightsBill of Rights 1689The Bill of Rights or the Bill of Rights 1688 is an Act of the Parliament of England.The Bill of Rights was passed by Parliament on 16 December 1689. It was a re-statement in statutory form of the Declaration of Right presented by the Convention Parliament to William and Mary in March 1689 ,...
(1689; England) declared that Englishmen, as embodied by ParliamentParliamentA parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
, possess certain civil and political rights. - The Claim of RightClaim of Right Act 1689The Claim of Right is an Act passed by the Parliament of Scotland in April 1689. It is one of the key documents of Scottish constitutional law.-Background:...
(1689; Scotland) was one of the key documents of Scottish constitutional law. - Virginia Declaration of RightsVirginia Declaration of RightsThe Virginia Declaration of Rights is a document drafted in 1776 to proclaim the inherent rights of men, including the right to rebel against "inadequate" government...
(1776) by George MasonGeorge MasonGeorge Mason IV was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention...
declared the inherent natural rights and separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. - United States Declaration of IndependenceUnited States Declaration of IndependenceThe Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
(1776) succinctly defined the rights of man as including, but not limited to, "Life, liberty, and the pursuit of happiness" which later influenced "liberté, égalité, fraternitéLiberté, égalité, fraternitéLiberté, égalité, fraternité, French for "Liberty, equality, fraternity ", is the national motto of France, and is a typical example of a tripartite motto. Although it finds its origins in the French Revolution, it was then only one motto among others and was not institutionalized until the Third...
" (liberty, equality, fraternity) in France The phrase can also be found in Chapter III, Article 13 of the 1947 Constitution of JapanConstitution of JapanThe is the fundamental law of Japan. It was enacted on 3 May, 1947 as a new constitution for postwar Japan.-Outline:The constitution provides for a parliamentary system of government and guarantees certain fundamental rights...
, and in President Ho Chi MinhHo Chi MinhHồ Chí Minh , born Nguyễn Sinh Cung and also known as Nguyễn Ái Quốc, was a Vietnamese Marxist-Leninist revolutionary leader who was prime minister and president of the Democratic Republic of Vietnam...
's 1945 declaration of independence of the Democratic Republic of Vietnam. An alternative phrase "life, liberty and property", is found in the Declaration of Colonial Rights, a resolution of the First Continental CongressFirst Continental CongressThe First Continental Congress was a convention of delegates from twelve of the thirteen North American colonies that met on September 5, 1774, at Carpenters' Hall in Philadelphia, Pennsylvania, early in the American Revolution. It was called in response to the passage of the Coercive Acts by the...
. Also, Article 3 of the Universal Declaration of Human RightsUniversal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
reads, "Everyone has the right to life, liberty and security of person." - Virginia Statute for Religious FreedomVirginia Statute for Religious FreedomThe Virginia Statute for Religious Freedom was drafted in 1777 by Thomas Jefferson in the city of Fredericksburg, Virginia. In 1786, the Assembly enacted the statute into the state's law...
(1785; United States) Written by Thomas JeffersonThomas JeffersonThomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
in 1779, the document asserted the right of man to form a personal relationship with God without interference by the state. - The Declaration of the Rights of Man and of the CitizenDeclaration of the Rights of Man and of the CitizenThe Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
(1789; France) was one of the fundamental documents of the French RevolutionFrench RevolutionThe French Revolution , sometimes distinguished as the 'Great French Revolution' , was a period of radical social and political upheaval in France and Europe. The absolute monarchy that had ruled France for centuries collapsed in three years...
, defining a set of individual rightsIndividual rightsGroup rights are rights held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof...
and collective rights of the people. - The United States Bill of RightsUnited States Bill of RightsThe Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
(1789/1791; United States), the first ten amendments of the United States ConstitutionUnited States ConstitutionThe Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, was another influential document. - The Universal Declaration of Human RightsUniversal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
(1948) is an over-arching set of standards by which governments, organisations and individuals would measure their behaviour towards each other. The preamble declares that the "...recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedomFreedom (political)Political freedom is a central philosophy in Western history and political thought, and one of the most important features of democratic societies...
, justiceJusticeJustice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
and peacePeacePeace is a state of harmony characterized by the lack of violent conflict. Commonly understood as the absence of hostility, peace also suggests the existence of healthy or newly healed interpersonal or international relationships, prosperity in matters of social or economic welfare, the...
in the world..." - The European Convention on Human RightsEuropean Convention on Human RightsThe Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
(1950; Europe) was adopted under the auspices of the Council of EuropeCouncil of EuropeThe Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
to protect human rights and fundamental freedoms. - The International Covenant on Civil and Political RightsInternational Covenant on Civil and Political RightsThe International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
(1966) is a follow-up to the Universal Declaration of Human RightsUniversal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, concerning civil and political rights. - The International Covenant on Economic, Social and Cultural RightsInternational Covenant on Economic, Social and Cultural RightsThe International Covenant on Economic, Social and Cultural Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976...
(1966) is another follow-up to the Universal Declaration of Human RightsUniversal Declaration of Human RightsThe Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
, concerning economic, social and cultural rights. - The Canadian Charter of Rights and FreedomsCanadian Charter of Rights and FreedomsThe Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
(1982; Canada) was created to protect the rights of CanadianCanadaCanada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
citizens from actions and policies of all levels of government. - The Charter of Fundamental Rights of the European UnionCharter of Fundamental Rights of the European UnionThe Charter of Fundamental Rights of the European Union enshrines certain political, social, and economic rights for European Union citizens and residents, into EU law. It was drafted by the European Convention and solemnly proclaimed on 7 December 2000 by the European Parliament, the Council of...
(2000) is one of the most recent legal instruments concerning human rights.
Natural rights theories
The existence of natural rights has been asserted by different individuals on different premises, such as a prioriA priori and a posteriori (philosophy)
The terms a priori and a posteriori are used in philosophy to distinguish two types of knowledge, justifications or arguments...
philosophical reasoning or religious principles. For example, Immanuel Kant
Immanuel Kant
Immanuel Kant was a German philosopher from Königsberg , researching, lecturing and writing on philosophy and anthropology at the end of the 18th Century Enlightenment....
claimed to derive natural rights through "reason" alone. The Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are ... endowed by their Creator with certain unalienable Rights".
Likewise, different philosophers and statesmen have designed different lists of what they believe to be natural rights; almost all include the right to life
Life
Life is a characteristic that distinguishes objects that have signaling and self-sustaining processes from those that do not, either because such functions have ceased , or else because they lack such functions and are classified as inanimate...
and liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
as the two highest priorities. H. L. A. Hart
H. L. A. Hart
Herbert Lionel Adolphus Hart was an influential legal philosopher of the 20th century. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law....
argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. T. H. Green argued that “if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life.” John Locke
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...
emphasized "life, liberty and property" as primary. However, despite Locke's influential defense of the right of revolution
Right of revolution
In political philosophy, the right of revolution is the right or duty, variously stated throughout history, of the people of a nation to overthrow a government that acts against their common interests...
, Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
substituted "pursuit of happiness" in place of "property" in the United States Declaration of Independence
United States Declaration of Independence
The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...
.
Thomas Hobbes
Thomas Hobbes (1588–1679) included a discussion of natural rights in his moral and political philosophyPolitical philosophy
Political philosophy is the study of such topics as liberty, justice, property, rights, law, and the enforcement of a legal code by authority: what they are, why they are needed, what, if anything, makes a government legitimate, what rights and freedoms it should protect and why, what form it...
. 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
Bellum omnium contra omnes
Bellum omnium contra omnes, a Latin phrase meaning "the war of all against all," is the description that Thomas Hobbes gives to human existence in the state of nature thought experiment that he conducts in De Cive and Leviathan ....
", 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
Civil society
Civil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
. This is one of the earliest formulations of the theory of government known as the social contract
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
.
Hobbes objected to the attempt to derive rights from "natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
," 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
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
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.
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 lifeLife
Life is a characteristic that distinguishes objects that have signaling and self-sustaining processes from those that do not, either because such functions have ceased , or else because they lack such functions and are classified as inanimate...
, liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
, and property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
. It was once conventional wisdom that Locke greatly influenced the American Revolutionary War
American Revolutionary War
The American Revolutionary War , the American War of Independence, or simply the Revolutionary War, began as a war between the Kingdom of Great Britain and thirteen British colonies in North America, and ended in a global war between several European great powers.The war was the result of the...
with his writings of natural rights, but this claim has been the subject of protracted dispute in recent decades. For example, the historian Ray Forrest Harvey declared that Jefferson and Locke were at "two opposite poles" in their political philosophy, as evidenced by Jefferson’s use in the Declaration of Independence of the phrase "pursuit of happiness" instead of "property." More recently, the eminent legal historian John Phillip Reid has deplored contemporary scholars’ "misplaced emphasis on John Locke," arguing that American revolutionary leaders saw Locke as a commentator on established constitutional principles. Thomas Pangle
Thomas Pangle
Thomas Lee Pangle BA PhD FRSC is an American political scientist. He currently holds the Joe R. Long Chair in Democratic Studies in the Department of Government at the University of Texas at Austin and from 1979 to 2004 was University Professor in the Department of Political Science at the...
has defended Locke's influence on the Founding, claiming that historians who argue to the contrary either misrepresent the classical republican alternative to which they say the revolutionary leaders adhered, do not understand Locke, or point to someone else who was decisively influenced by Locke. This position has also been sustained by Michael Zuckert.
According to Locke there are three natural rights:
- Life: everyone is entitled to live 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 three 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 ManRights of Man
Rights of Man , a book by Thomas Paine, posits that popular political revolution is permissible when a government does not safeguard its people, their natural rights, and their national interests. Using these points as a base it defends the French Revolution against Edmund Burke's attack in...
(1791), emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges:
Debate
Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability. This concept has been recognized by libertarians as being central to the question of voluntary slaveryVoluntary slavery
Voluntary slavery is the condition of slavery freely entered into. In ancient times this was a common way for impoverished people to provide subsistence for themselves or their family and provision was made for this in law...
, which Murray Rothbard
Murray Rothbard
Murray Newton Rothbard was an American author and economist of the Austrian School who helped define capitalist libertarianism and popularized a form of free-market anarchism he termed "anarcho-capitalism." Rothbard wrote over twenty books and is considered a centrally important figure in the...
dismissed as illegitimate and even self-contradictory. Stephan Kinsella
Stephan Kinsella
frame|right|Stephan KinsellaNorman Stephan Kinsella is an American intellectual property lawyer and libertarian legal theorist. His electronically published works are primarily published on his blog and websites associated with the Ludwig von Mises Institute and anarcho-capitalist...
argues that "viewing rights as alienable is perfectly consistent with—indeed, implied by—the libertarian non-aggression principle
Non-aggression principle
The non-aggression principle , or NAP for short, is a moral stance which asserts that aggression is inherently illegitimate...
. Under this principle, only the initiation of force is prohibited; defensive, restitutive, or retaliatory force is not."
The concept of inalienable rights was criticized by Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
and Edmund Burke
Edmund Burke
Edmund Burke PC was an Irish statesman, author, orator, political theorist and philosopher who, after moving to England, served for many years in the House of Commons of Great Britain as a member of the Whig party....
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
Reflections on the Revolution in France
Reflections on the Revolution in France , by Edmund Burke, is one of the best-known intellectual attacks against the French Revolution...
"). Presaging the shift in thinking in the 19th century, Bentham famously dismissed the idea of natural rights as "nonsense on stilts". By way of contrast to the views of Burke and Bentham, the leading American revolutionary scholar James Wilson
James Wilson
James Wilson was one of the Founding Fathers of the United States and a signer of the United States Declaration of Independence. Wilson was elected twice to the Continental Congress, and was a major force in drafting the United States Constitution...
condemned Burke's view as "tyranny."
The signers of the Declaration of Independence deemed it a "self evident truth" that all men are "endowed by their Creator with certain unalienable Rights". Critics, however, could argue that use of the word "Creator" signifies that these rights are based on theological
Theology
Theology is the systematic and rational study of religion and its influences and of the nature of religious truths, or the learned profession acquired by completing specialized training in religious studies, usually at a university or school of divinity or seminary.-Definition:Augustine of Hippo...
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. The signers did not all, however, share the same religion.
In "The Social Contract," Jean-Jacques Rousseau
Jean-Jacques Rousseau
Jean-Jacques Rousseau was a Genevan philosopher, writer, and composer of 18th-century Romanticism. His political philosophy influenced the French Revolution as well as the overall development of modern political, sociological and educational thought.His novel Émile: or, On Education is a treatise...
claims that the existence of inalienable rights is unnecessary for the existence of a constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
or a set of laws and rights. This idea of a social contract
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
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
Samuel P. Huntington
Samuel Phillips Huntington was an influential American political scientist who wrote highly-regarded books in a half-dozen sub-fields of political science, starting in 1957...
, 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. [Advocates for the Declaration's adoption] had to have some other basis on which to justify independence".
Different philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to separate truly axiom
Axiom
In traditional logic, an axiom or postulate is a proposition that is not proven or demonstrated but considered either to be self-evident or to define and delimit the realm of analysis. In other words, an axiom is a logical statement that is assumed to be true...
atic rights from supposed rights, stating that any principle that requires itself to be disproved is an axiom. Critics have pointed to the lack of agreement between the proponents as evidence for the claim that the idea of natural rights is merely a political tool. For instance, Jonathan Wallace has asserted that there is no basis on which to claim that some rights are natural, and he argued that Hobbes' account of natural rights confuses right with ability (human beings have the ability to seek only their own good and follow their nature in the same way as animals, but this does not imply that they have a right to do so). Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:
Other critics have argued that the attempt to derive rights from "natural law" or "human nature" is an example of the is-ought problem
Is-ought problem
The is–ought problem in meta-ethics as articulated by Scottish philosopher and historian, David Hume , is that many writers make claims about what ought to be on the basis of statements about what is...
. 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
Ethical naturalism
Ethical naturalism is the meta-ethical view which claims that:# Ethical sentences express propositions.# Some such propositions are true....
, which according to G.E. Moore does suffer the is-ought problem in the form of the naturalistic fallacy
Naturalistic fallacy
The naturalistic fallacy is often claimed to be a formal fallacy. It was described and named by British philosopher G. E. Moore in his 1903 book Principia Ethica...
.
Hugh Gibbons has proposed a descriptive argument based on human biology. He claims that Human Beings were other-regarding as a matter of necessity, in order to avoid the costs of conflict. Over time they developed expectations that individuals would act in certain ways which were then prescribed by society (duties of care etc.) and that eventually crystallized into actionable rights.
There is also debate as to whether all rights are either natural or legal. Fourth president of the United States James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
, while representing Virginia in the House of Representatives, believed that there are rights, such as trial by jury
Trial by Jury
Trial by Jury is a comic opera in one act, with music by Arthur Sullivan and libretto by W. S. Gilbert. It was first produced on 25 March 1875, at London's Royalty Theatre, where it initially ran for 131 performances and was considered a hit, receiving critical praise and outrunning its...
, that are social rights
Social rights
Economic, social and cultural rights are socio-economic human rights, such as the right to education, right to housing, right to adequate standard of living and the right to health. Economic, social and cultural rights are recognised and protected in international and regional human rights...
, arising neither from natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
nor from positive law
Positive law
Positive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group...
(which are the basis of natural and legal rights respectively) but from the social contract
Social contract
The social contract is an intellectual device intended to explain the appropriate relationship between individuals and their governments. Social contract arguments assert that individuals unite into political societies by a process of mutual consent, agreeing to abide by common rules and accept...
from which a government derives its authority.
See also
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- RightsRightsRights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
- Human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
- Rule of lawRule of lawThe rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
- Natural lawNatural lawNatural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
- Positive lawPositive lawPositive law is the term generally used to describe man-made laws which bestow specific privileges upon, or remove them from, an individual or group...
- Substantive due processSubstantive due processSubstantive due process is one of the theories of law through which courts enforce limits on legislative and executive powers and authority...
Further reading
- Fruehwald, Edwin, A Biological Basis of Rights, 19 Southern California Interdisciplinary Law Journal 195 (2010).
- Grotius, Hugo, The Rights Of War And Peace: Three Volume Set, 1625
- Haakonssen, Knud, Grotius, Pufendorf and Modern Natural Law, 1999
- Hutcheson, Francis. A System of Moral Philosophy. 1755, London.
- Locke, John. Two Treatises on Government. 1690 (primarily the second treatise)
- Lloyd Thomas, D.A. Locke on Government. 1995, Routledge. 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 PressOxford University PressOxford University Press is the largest university press in the world. It is a department of the University of Oxford and is governed by a group of 15 academics appointed by the Vice-Chancellor known as the Delegates of the Press. They are headed by the Secretary to the Delegates, who serves as...
. ISBN 0-19-875063-3
External links
- The U.S. Declaration of Independence and Natural Rights from Constitutional Rights Foundation.