Natural Rights - History

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Natural rights - rights, freedoms and privileges which are such a basic part of human nature that they cannot be taken away. These are different from rights which are given to people by the law. According to the Declaration of Independence, these rights include "life, liberty and the pursuit of happiness."

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What is John Locke’s theory of natural rights and justification for a limited government?

T he state of nature is a condition without civil authority, in which peace and mutual distrust prevails. The law of nature has no person to overlook its enforcement because everyone serves as the judge, jury and executioner. Therefore, there is a need for political authority and power to ensure that certain inalienable rights are protected.

Jefferson, Locke, Natural Rights, and Independence.

In drafting the Declaration of Independence, Thomas Jefferson justified demanding independence by citing several examples of ways in which England’s King George III had refused to recognize the natural rights of American colonists. Even with fighting between colonists and British troops already taking place on American soil, most members of Congress still hoped for a peaceful agreement with their motherland.

In the first two paragraphs of that fateful document adopted by the Second Continental Congress on July 4, 1776, Jefferson revealed his idea of natural rights in the often-quoted phrases, “all men are created equal,” “inalienable rights,” and “life, liberty, and the pursuit of happiness.”

Educated during the Age of Enlightenment of the 17th and 18th centuries, Jefferson adopted the beliefs of philosophers who used reason and science to explain human behavior. Like those thinkers, Jefferson believed universal adherence to the “laws of nature” to be the key to advancing humanity.

Many historians agree that Jefferson drew most of his beliefs in the importance of natural rights he expressed in the Declaration of Independence from the Second Treatise of Government, written by renowned English philosopher John Locke in 1689, as England’s own Glorious Revolution was overthrowing the reign of King James II.

The assertion is hard to deny because, in his paper, Locke wrote that all people are born with certain, God-given “inalienable” natural rights that governments can neither grant nor revoke, including “life, liberty, and property.”

Locke also argued that along with land and belongings, “property” included the individual’s “self,” which included well being or happiness.

Locke also believed that it was the single most important duty of governments to protect the God-given natural rights of their citizens. In return, Locke expected those citizens to follow the legal laws enacted by the government. Should the government break this “contract” with its citizens by enacting “a long train of abuses,” the citizens had the right to abolish and replace that government.

By listing the “long train of abuses” committed by King George III against American colonists in the Declaration of Independence, Jefferson used Locke’s theory to justify the American Revolution.

“We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.” – The Declaration of Independence.

The History of Natural Right

G iven this revisionary account of the development of natural law (click for previous instalment in this series) in western intellectual history, how does it relate to the story of natural rights? In the case of Aquinas, as with many other medieval theologians, and the canon law itself, the Christian exaltation of individual uniqueness and liberty led to a greater recognition of subjective rights in the sense of both claim and exercise rights than had previously been the case. However, the claims generally remained claims upon others to exercise their more primary duties, while exercise rights were attached to social roles whose duties were derived from justice as distribution.[1] Later, in the 16 th century, in the case of both Catholic and Calvinist thought, there was a greater development of the idea of “rights” as attaching to human beings as such, especially with respect to life, freedom and ownership. Thus for example, Suarez no longer, like Aquinas, defined ius as id quod iustum est, or as the equitable, but as “a kind of facultas which every man has, either over his own property, or with respect to that which is due to him.”[2]

These universal claim-rights of humans upon all other humans were now indeed over-absolutely affirmed, in relative neglect of equity.[3] Yet, no more than in the case of Aquinas and canon law were these rights most commonly based upon a subjective foundation, sundered from notions of right cosmic order (as Suarez’ invocation of “what is [objectively] due” can serve to indicate), even though this has started to become too theoretically and “factually” regarded, rather than prudentially, in such a way as to encourage a false “non-negotiability” of fundamental right and obligation. Instead, rights to feed and clothe and protect oneself followed from one’s duty to do so as God’s creature, as revealed by the factual circumstances of one’s given nature, while Protestant defenses of the liberty of religious conscience derived from the view that without this right one could not do one’s sincere, unconstrained duty towards God.[4]

Here one can note that today it is becoming clear that, without any sense of religion as necessarily an intrinsic good, the rights of religious freedom are liable to lapse, even though so many of our other liberties are in historical reality derived from them.

By contrast, the substitution of a general right of conscience for religious liberty is likely in practice to inhibit all religious and group freedoms, because it tends always to favour the plea of the individual against any form of perceived “pressure”—as for example the wearing of religious symbols at work, or the demands of a non-political corporate body that its members adhere to its regulations. Since most of our capacities are achieved through collaboration and association, the real effect of this is eventually to reduce even individual freedoms.

For these reasons, the historical development of religious freedom in terms of the right to associate, and to form rule-bound sub-communities has been crucial to the history of western liberty. This right was much developed, in the wake of medieval corporate jurisprudence, by Calvinist thinkers like Althusius in the Netherlands. But here again it was considered subordinate to our duty to enter into neighbourly formations. Sometimes, indeed, the grounding of this natural law lay ultimately in the divine will rather than the divine reason, but that did not necessarily mean that the primacy of self-determination was echoed at the human level.[5] All the same, one can also note here, with Michel Villey, that Althusius, unlike Aquinas, derives the right of associations themselves finally from the individual right to associate, rather than from the embodiment of relational justice that an association has entered into. So here, as in other instances, an over-weighting towards subjective content of rights does start to slide towards their subjective foundation, though without explicitly getting there.[6]

Later developments of the Protestant legacy, shading off into the enlightenment, tended (with seeming contradiction) on the one hand to cast off the voluntarist residue, yet on the other generally also to lose the covenanting impulse in favour of more individualist stoic notions of officium, combined with sentimental and at times egoistically-projected notions of fellow-feeling. It seems to have been exactly the unnatural hybrid of contract theory with the ethics of sympathy that led to the eventual replacement of natural rights with the rights of man, thereby somewhat obscuring the biopolitical aporia as to the relative naturalness or civility of all human ius.[7]

It then follows that, as several scholars have now shown, most natural rights thinking up till and even including the American Revolution, still remained inserted in a natural law, cosmic order context, even if the increasing focus upon subjective property rights implicitly tended to unsettle this adherence.[8] Rights, however to the fore, remained, if one looks closely, even for someone like Thomas Jefferson, ultimately subordinate to duties to others and to God. Nevertheless, from early modernity onwards there is an imbalance, as compared with Aquinas. For it is considerably forgotten, as Annabel Brett rightly stresses, that justice is mainly ad alterum, even if one properly claims the assertion of universal natural rights (as correlated with duty and holding “generally” rather than “universally”) to religious liberty, security of life and property, free speech etc as legitimate advances, compatible (given the limiting protocols just indicated) with the spirit of genuine Thomism. But what happens between people in terms of economic interaction and social behaviour tended to get relatively (if as yet by no means completely) demoralised and so handed over to power and convention, or the spectacle of mere fashion and customs of untrustworthy politesse. Just by reason of this neglect of the relational, the explicit stress tended to fall upon rights rather than duties, even though the latter remained precariously foundational, since the main anxiety of the age was to ensure that people could exercise their perceived responsibility without interference.

Nevertheless, when it comes to the always focal right of property, one already sees, even as far back as Francisco de Vitoria in the 16 th century and then in almost everyone who came after him, an incorporation of the non-Thomist, but rather Scotist and nominalist idea that ius can be roughly identified with dominium (as witnessed by the quotation from Suarez above) and that right to ownership proceeds primarily from de facto power.[9] Even if ownership remains, as for Aquinas, ordained by God for the sake of general order and of community benefit, its derivation first from power rather than distribution concurs with Vitoria’s view that ownership goes naturally with “license” to do with the owned as one pleases, rather than being attached to various specific social duties of upkeep and usage. From this instance we can see again, that despite the importance of the distinction between subjective rights and their subjective founding, this is no tidy boundary. For the more they are the rights most insisted upon and the more they are detached from bonds of relation, then, inevitably the more they tend to become both self-founded and non-negotiably absolute and universal, like a kind of gated-community outside the perimeter of a normal, mutually-established human settlement.

A balanced sense of equity, as well as the dire if inchoate cries of the present day would seem to suggest that we now need a new natural law synthesis that would sustain the best gains of natural rights—rights to non-coercion in as many contexts as possible, rights to free speech, to security of ownership if this can be distributively legitimized, to community-securing of our health, and educational development, to political participation—while re-incorporating the ethical pertinence of what the Romans called the “incorporeal links” between people and things and people and people.[10] It is surely also obvious, as with Aquinas’s notion of a natural way to be cultural, that this fits better with the ecological concerns of our era if they are also to remain humanist ones.

However, an initially minority report of natural rights has eventually become the majority report. This report concerns the notion of subjective rights resting on subjective foundations. The story here is complex and highly disputed. Yet in summary it does seem clear that it does not just begin with Grotius and Hobbes, as Leo Strauss supposed. Rather, as Michel Villey argued, certain currents of Franciscan voluntarist theology replaced participation in the eternal law with notions of God as the maker and therefore proprietor of the Creation, who mediates his power-based authority in terms of the capacities and wills of his creatures.[11] Thereby, indeed, and before the early modern period, one starts to read off natural law from nature. The power one has over oneself implies self-ownership the fact of the power of kings implies their unrestricted right to underwrite other property ownership. And if to have natural power is to own, then conversely to have artificial ownership is to enjoy unrestricted power over one’s own property.

This naturally gives rise to dilemmas of reflexivity: since the mark of inalienability is absolute power and will, can the inalienable itself be alienated? Such dilemmas lay at the crux of the medieval arguments over Franciscan poverty: did the friars have the right, as humans, to renounce right and become in a sense either animal or superhuman? Is the residual right to use which they share in common with beggars, children and the infirm really and newly a “right” beyond the mere expectation of charity? And is there therefore a will beyond self-possession implied in the very exercise of self-possession?[12] In this way the Franciscans seem to prefigure both Hobbes and Rousseau, both capitalism and communism, both absolute property and the revolt against it, both humanism and the ecologically posthuman.[13] It is difficult, despite many scholarly protests, not to think that the contrast between their path and that of the Dominicans is secretly more fundamental for eventual outcomes than the divisions of left and right since the French Revolution.[14] For it is this originally Franciscan path that theoretically, but also practically and liturgically, demotes central concern with equitable distributive justice, with justice as ad alterum.

By whatever routes (and some of them certainly visible) this same path resurfaces from underground in the 17 th century. For Fernando Vasquez, Thomas Hobbes, and John Locke not only does justice reduce to adherence to contract, morality does as well—it is a fiction by which humans must abide, since all of culture is of our own making as an arbitrary sub-creation within a domain allowed us by God.[15] (A teleological and participatory construal of this sub-creating, as by Nicholas of Cusa and later Giambattista Vico being both rare and—promisingly for us, today—remarkable.)[16] And yet, even in the case of natural law subverted as foundational natural right, the theological dimension seems scarcely incidental. For Locke indeed, prior to all conventional sub-creation we must conserve other humans and creatures besides ourselves, since they are God’s property as his creation.[17] And even for Hobbes, as earlier for William of Ockham, the pre-political facts of our fearfulness and capacity can only be the foundation for right because they disclose the dissemination of the divine will and authority and provide us with the clue as to our self-sustaining in harmony with the self-sustaining of others.[18] Remove the divine from this picture and nothing stands in the way of a pure Nietzschean (or worse) political power-cult.

After the 17 th century, pure self-founded natural rights emerges roughly in two versions, which can be associated respectively with the American (though with qualifications, as we have seen) and the French revolutions. And it is important to take careful note of this linkage, which effectively wrenches natural right away from natural law in the double name of the absolutely sovereign state and the originally isolated individual—arguably in defiance of all more fundamental social realities, before the revolutions and since.

In the American case, one can note three circumstances, which all have to do with the fact that natural rights cannot really be sufficient to provide a political foundation.

First, the individuals who enter into a contract with mere self-interest on either side are bound to find, as George Grant and Jean-Claude Michéa have variously argued, that the contract comes to rule them, rather than the other way round.[19] For a contract is an impersonal formal procedure and therefore is in automatic alliance with technology and bureaucracy. Thus, in a liberal society on the American model, the space of free choice will be more and more constrained, though more and more closely guarded, while the public sphere will be handed-over to impenetrable process, beyond the reach of reciprocal and consensual alteration.

As Werner Hammacher has argued, the possessive individualist construal of rights can never really suppress the anarchic agonism of its starting presupposition, whereby everyone is potentially an enemy to everyone else, with no positive construal of human collective or social identity as, affirmed by Marx’s idea of Man as “species being.”[20] Or as Edmund Burke discerningly puts it (and in agreement with Marx as to the real character of the French Revolution) “the right of the people is always sophistically confounded with power.”[21] Here the notion that one should exercise one’s own liberty only insofar as it does not intrude upon the freedom of others is not, in isolation, actionable as a moral imperative, for it is obvious that this boundary is always in some degree breached, and also that the very erection of a boundary depends upon the contingent establishing of arbitrary property boundaries, without which the reach and range of what is strictly “one’s own” has to remain elusive. The Hobbes-Locke model of possessive individualism (whereby selfhood is defined in terms of self-ownership)[22] tacitly acknowledges this state of affairs by regarding the non-transgressable boundary of non-interference between people as not intuitively a priori, but rather as only establishable by agreed, fictionally “initial,” contractual convention.

Again Burke deciphers the reality of this situation: “The moment you abate any thing from the full rights of men, each to govern himself, and suffer any artificial limitation upon those rights, from that moment the consideration of government becomes a consideration of convenience.” He adds that the assertion of abstract universal claim rights to food or medicine tend to evade the prior question of “the method of procuring and administering them.” Here his declaration that he would here look to answers to “the farmer and the physician, rather than the professor of metaphysics” is complexly ironical in a way that can easily be missed.[23] For Burke, in asserting the priority of duty and concrete end over right, is re-asserting a deeper metaphysics against one founded upon a demonic alliance of voluntarist with materialist priorities that fails to understand the perspectives of real, beneficent social operators whose concerns naturally unite the material with the formal and the teleological. Thus given Burke’s avowal a little later of the necessary roles of prudence and charity in a true political process concerned with the flourishing of human person according to practical right reason (very much as Aquinas, one could argue)[24] one can read his “convenience” in a double fashion. Either it is like traditional scholastic convenientia (that is still echoed in the 18 th century dulce et utile), a matter of true distributive justice in accordance with true human fulfilment, or it is the debased “convenience” of supposed public utility that will amount in practice to the imposition of a tyrannical will, falsely claiming to represent the people.

Thus the inherently technological and utilitarian contract is only enforceable by an all-powerful sovereign “state” whose novel “statehood” is itself defined by artificially achieved stasis, rather than by any claim to participation in divine equity. Marx (discussing here, like Burke, not the American but the French revolution, though his reasoning applies a fortiori to the former) also rightly recognises that, if this violence is backed up by the state, and if the state’s own power is channelled by this violence, then the state’s claim to act as guardian of absolute rights also depends, with the same paradox, upon a continuous infringement of this absoluteness, in terms of its constant decisions as to what are effectively “exceptions” to the regular but impossible equal exercise of contractual balance between isolated absolute wills, in which its establishment of its own sovereignty must always finally consist. Thus Marx writes: “The limits within which each individual can move without harming others are determined by law, just as the boundary between two fields is determined by a stake.” Arbitrariness can alone mediate between freedoms by arbitrarily limiting them, because “The liberty we are dealing with here is that of man as an isolated monad who is withdrawn into himself,”[25] and who therefore must “see in others not the realisation but the limitation of his own freedom.”[26] Since, after the official commencement it is the state, (even if, as for Locke, subject to some representational checks) that must continuously define and re-define the actual content of contractual boundaries, this means that established natural rights only have civic existence when, in reality, the originally violent natural liberty of some is civilly licensed to be enacted over others, in such a way that their both natural and civil, supposedly “absolute” right is in reality inhibited as a paradoxical precondition of the very possibility of asserting “absolute” rights at all.

Herein lies the essence of Marx’s critique of liberal revolutionary rights in his essay “On the Jewish Question,” and he rightly sees this civilly-released natural violence as most of all prevalent in terms of modern property distribution.[27] Marx (discussing here, like Burke, not the American but the French Revolution, though his reasoning applies a fortiori to the former) also rightly recognises that, if this violence is backed up by the state, and if the state’s own power is channelled by this violence, then the state’s claim to act as guardian of absolute rights also depends, with the same paradox, upon a continuous infringement of this absoluteness, in terms of its constant decisions as to what are effectively exceptions to the regular but impossible equal exercise of contractual balance between isolated absolute wills, in which its establishment of its own sovereignty must always finally consist. Thus Marx writes: “The limits within which each individual can move without harming others are determined by law, just as the boundary between two fields is determined by a stake.” Arbitrariness can alone mediate between freedoms by arbitrarily limiting them, because “The liberty we are dealing with here is that of man as an isolated monad who is withdrawn into himself,”[28] and who therefore must “see in others not the realisation but the limitation of his own freedom.”[29] For this reason Carl Schmitt’s apparently anti-liberal theory of state sovereignty as the power to decide upon an exception to normative legality is in fact simply an accurately liberal view, when coherently deconstructed.[30]

And in this respect also, Marx already grasps “the dialectic of enlightenment”: the French Revolution has for the first time constituted a “state” in the “real” sense of a separation of government as a “concern of the whole people” from “civil society” understood as, in the ancien regime, an inextricable mixture of the social and the political, insofar as rule worked with and through “estates, corporations, guilds and privileges.” Since these were both stratified and variously exclusive, the people have now been “emancipated” from them through the state, which has dissolved them.[31] Yet by the very same token “civil society” has been emancipated from the state, such that now the economic actor is anarchically free, alone and conceived of as prior and independent to the political process. It is this very man who is thereby naturalized and rendered “the bearer of natural rights.”[32] In this way, long before Foucault, Marx grasps the biopolitical cleavage endemic to foundational rights: “Political emancipation is the reduction of man on the one hand to the member of civil society, the egoistic, independent individual, and on the other to the citizen, the moral person.”[33]

However, instead of offering a metacritique of the very notion of emancipation, which would be an appeal back to the different logic of genuine natural law, Marx seeks a merely immanent critique of liberal natural rights logic which seeks to take emancipation further and thereby end its liberal contradiction. Such further emancipation can only imply a favouring of the “natural” side of the aporia, in an essentially Rousseauist manner, and in a way that seeks to evade human paradoxical constitution as cultural animal. Thus: “All emancipation is reduction of the human world and of relationships to man himself.” That is to say, to a fictional essence of man outside all culture and all history (in contrast to the Aristotelian understanding of essence). Thus it is the natural human being of civil society—economic man, capitalist man!—who is for Marx “real, individual man.” Precisely, then, man as bearer of natural right, for all Marx’s apparent deconstruction of this notion. It is this, mythically pre-social human person who, under communism “resumes the abstract being into himself,” appropriating and abolishing the moral, political dimension which is the sphere of debate and legislation. Now no longer is his natural freedom inhibited, because the alienated social as political force is now taken back into his forces propres.[34]This means then, that no longer is the individual’s absolute natural freedom politically constrained in terms of arbitrary boundaries between one freedom and another.

But how then, for Marx, is war and anarchy not then to ensue? The answer appears to be that, for Marx, the relationally-unmediated identification of the individual with “species being” naturally ensures that humans cooperate in terms of rational and technological norms. Thus to underscore the point made earlier: this means that for Marx (even, here, the young Marx) the application of natural rights, just as with liberalism, assumes a materialist, positivist and utilitarian notion of the calculability of people’s supposedly “fundamental” needs and the collective contributions they are able to make, in suppression the inherent debatability of shared value. So Marx’s view that emancipation can be “completed” beyond liberal natural rights remains a natural rights doctrine, founded upon possessive individualism, with all the chronic problems that attends any such perspective.[35]

Secondly, since rights are natural and yet only exist through contractual agreement under the state, they necessarily enter an aporia, which further illustrates Hammacher’s crucial point that the artificial contractual suppression of original natural anarchy depends upon the continued constrained channelling of this very anarchy. As Hannah Arendt pointed out, one only needs natural rights when one cannot have them since, as in the case of the refugee, one falls outside the scope of the state.[36] In that case it becomes undecidable as to whether outcasts have or have not rights, and it is pointless to say here with Jacques Rancière that a zero-rights position is never actually reached, for this only means (as is banally true) that all humans, even refugees, enter into some sort of minimal polity.[37] The point is rather the asymptotic tendency towards what Giorgio Agamben calls homo sacer, than its impossible actual attainment.[38] If, as regards those within this tendency, their rights are undecidable as between “already there” and “not as yet enacted” then, inevitably, states will decide to activate some natural not-as-yet-rights and to ignore others, or even to suppress already existent political rights according to international law in the name of the protection of rights in general. For this last possibility connects to a further aporetic dimension regarding natural rights that has already been invoked—if they belong absolutely to the individual but do so in the contractual interests of all as guaranteed by the state, then just as the individual may well decide in revolutionary fashion that his rights are after all not respected by the state (and there are no real criteria for this, so the anti-federal militiamen in the US outback are perfectly respectable Lockeans . . .), so likewise the state may decide that certain legitimate freedoms or protections must be suspended in the interests of state security which alone renders natural rights operable. One does not need to spell out how all these things have been exemplified in recent American history.

In the third place, the cult of a foundational possessive individualism of itself clearly courts social, economic and even political disorder. To compensate for this, American and initially Anglo-Saxon, and before that French Jansenist proto-liberalism had to have recourse to a theory of history whereby God or nature governs fallen men despite or through their amoral passions or even deranged instincts.[39] But once more the reality of the heterogenesis of ends is the dominance of impersonal, technological processes, which in reality are manipulated or tacitly encouraged by several visible, human hands, whether of egoistic individuals, monopolies or the entrepreneurial state. At the same time there has, at least until recently, always remained a more co-operative and intentional aspect to the market economy, driven by a teleological love of things and people (as, for example with the history of Quaker or Methodist-led manufacturing) than the theory of pure “capitalism” would allow. And finally, the more this theory of history has been enacted, then the more we see that the ends of amoral or malign actions are a mass criminal compounding of the nature of the original isolated intentions. Here a false theology still governs us to our continued peril.

In the second, French version of natural right, the theory of possessive individualism is apparently abandoned, by first Rousseau and then Kant, in the name of a purer presence to self of a freedom that one cannot possess. But arguably this is to simply occupy the other, anti-legal, possession-free half of the Franciscan cleavage, and it is no accident that Rousseau shares with the Franciscan spirituals the conception of an isolated and pure, originally quasi-animal human existence. Thus not right as possession is here emphasised, but the right simply to have right, or the freedom simply to be free as one is given to be (beyond and before any self-creation) and even to dispense with possession, and thereby right itself as dominium and consent to any dominium if one so chooses.[40] For this theory then, in the case of Rousseau, the collective right of the people, founded ultimately in their individual natural rights, can never be alienated to any representatives, as it lies beyond the scope of a possession that can be sold or transferred.

Yet as with the Franciscan pure usage, it is difficult truly to sunder merely negative freedom from all taint of property. For the very notion of ownership involves that of an owner who is not owned, while the absolutization of property itself as the social foundation implies that the owner enjoys a pre-social and pre-legal liberty which is therefore outside ownership and even self-ownership. Moreover, this inevitable linkage implies also inversion—if ownership must also be sold on the market, as well as the owned, if any ownership is to be transferred, then in all substantive reality the freedom behind this ownership can itself be traded, else it becomes so ineffable as to be inoperative. Indeed, the very exchangeability of one abstract freedom with the other renders dubious any Kantian notion that people treated as pure ends will never get treated as means in the most debased and not person-regarding way (since there may be an equitable and non-reductive way to treat people as means—for example towards the achievement of a commonly shared end.) Even the adulation of a person as unique, if this is not linked to any ethical exemplarity for others, can lead to her becoming a marketable icon precisely by virtue of that uniqueness, as in the case of Marilyn Monroe. The problem with the dominant subject-object model in modern thought, as opposed to a thing to thing model, that can be intensified as person to person, is always just this reversibility, the final revenge of a reduced object upon a subject that first thought to so despise and reduce it.[41]

Given this endemic insecurity of pure freedom in the face of alien possession, the French way has tried to supplement pure freedom with collective vigilance and state organisation, just as the American way has tried to supplement possessive individualism with the cunning of reason. But if the latter risks criminality and anarchy, gun-crime and mob-rule, the former from the outset has risked terror, as famously analysed by Hegel, in terms of an endless search for any exercise of assertive positive freedom or of teleological virtue that might inhibit the pure, supposedly virtuous options of negative liberty.[42] And all this has also from the outset been strongly sauced with a sense of sympathy and pity for inhibited “victims,” as again Hannah Arendt once argued.[43] Obvious terror may have speedily passed, but Fichte’s advocacy of the French way as pure atemporal practice (in contrast to Hegel’s Anglo-Saxon advocacy of historical heterogenesis) is allied in his thinking, as Hegel also noticed, to a continuous intensification of police regulation, of the kind which has grown exponentially in our own day—restricting all our substantive freedoms in the name of liberty itself.[44]

Herein lies the French republican theology of history as anti-history—in the name of “the Supreme Being” the sacred secular state can bring into existence, in any time, out of nothing, as a pure inaugural event, the supposed absolute “human” conjunction of a natural with a citizen right. Nothing can now legitimately be enacted save through this state, as the revolutionary Declaration of the Rights of Man declares—thus outside this scope, within tribes or churches or the House of Israel or the Islamic Umma, for example, there can abide no true humanity, enjoying any rights whatsoever.[45] As again, Werner Hammacher has emphasised, although the French model sees rights as just given to mythically isolated individuals by a declaration of nature under God, it also seeks to suppress, beyond Hobbes and Locke, the constitutive biopolitical aporia of rights by regarding the declaration of the rights of man as a kind of new liturgical divine revelation, enacted through the state as a new quasi-church which, above all, one may add, has its (eventual and decisive) revolutionary essence in seeking to suppress the Catholic Church itself.[46] Thus, just as for Rousseau, the general will is mysteriously an expression and not an alienation (as it is for Hobbes and Locke) of original natural will, so also for the French settlement natural right somehow only exists and is only legitimate through state enactment. In this way the intransigence of later laicité stems from the fact that it is itself a civil religion—unlike the actually much purer secularity (contrary to received opinion) and anarchic neutrality of the American political domain.[47]

Thus in a more extreme version of the natural/civic rights aporia, these others may be either absolutely included within the republican order or else refused, exploited or ignored. Nor is it surely the case, as Luc Ferry and Alain Renaut argue, that the Kant-Rousseau model escapes a necessary utilitarian and technologising supplementation any more than does the Hobbesian one: for here again there must be some content to shared decision and if the norms are but formal, then this content will be determined according to instrumental criteria.[48] Marx rightly saw that this applied also to the French case, while failing to see that it was also sustained in his own.

In the end, even for the Rousseauian-Kantian trajectory, the essence of right, including ethical right as moral law, lies not in its release or exercise but always in its inhibition with regard to the acknowledging of the freedom of others. This inhibition is not, as for classical or medieval tradition, a matter of my own inherent flourishing, of suppressing false desires in favour of truer ones, but always just the suppression of desire tout court in recognition of an after all heteronomous social obligation, impinging extrinsically.

Since he arbitrarily and bizarrely erected freedom as the only ultimate value, Kant was able to draw up a list of absolute moral laws (such as not telling lies) incompatible with the non-inhibition of truly free decision as such. Yet he was well aware that in the cultural and political realm non-categorical and so merely self-interested and utilitarian imperatives must be taken into account.[49] It is always the case that, while right may be noumenally absolute, outside the kingdom of ends, in legal time it will constantly have to be qualified, just as Rousseau has to supplement the representatively unalienated general will with the role of the legislator. Thus for the French revolutionary tradition also, absolute freedom in effect gets treated as negotiably possessed property, as Marx thought. Absolute rights to life, liberty and property are never in practice absolute, just because only the state defines their legitimate bounds and must constantly protect its right to define these bounds, else the absoluteness of rights itself will be a dead letter.

And of course one can deconstruct this ontological scenario: as Hegel saw, the truth of the matter is that the supposedly noumenal is also political: for it is only if liberty and truth are defined in literally formal and so disguisedly human legal terms that one could imagine that any imperative is categorical and imperative, because then alone the boundaries between the free and the unfree, the true and the untrue are uncontroversial, in a spurious independence of all circumstance. The truth of this manoeuvre is that, by subordinating even the ethical to the law, as with Kant, one will in reality and in the long-term (as we see today) define the publicly ethical in terms of the legal, this being in reality the only imperative that is categorically operative. As Michel Villey insisted, the assumption of natural law and of the older European juridical tradition tout court is just the opposite: the subordination of lex to ius as objective right, and so of legislation to a goodness existing independently of the human.

Because of the covert role of always arbitrary central legislation, the absolute rights of liberalism, as of Marxism (which turns out to be a mode of liberalism) depend, as we have seen, upon their transgressability. The alternative approach of an authentic natural law approach to the widest claimed scope of subjective right is to proclaim outright that “in general” certain rights belonging to individuals obtain, such as the right to life, liberty, property (for use, exercise of talent and giving of social benefit, as appropriate) and freedom of speech and association, but that these are always subject to exception, because they do not exist apart from questions of just distribution and justice as debitum ad alterum. But this is a different kind of exception—not the arbitrary exception of the will of the individual or the state that is necessary in order artificially to construct social bonds, where no original social bonds are admitted to exist, but rather the exception of equity, continuously distilled by all between the incorporeal gaps that are nonetheless originally fundamental to human as well as social identity. Here, as we have indicated, even the Humanist, Reformation, Counter-Reformation and Enlightenment grounding of individual natural rights in natural law already tended, because of a false advertence to supposedly pre-given fact, to render generally normative rights too absolute and non-negotiable, because unmediated by distribution and equity and so already overly linked to self-possessed power and dominium. Yet it is clearly obvious that the rights even to life, liberty and free choice, never mind property, are necessarily suspendable in any legal order, national or international. The crucial question is whether their suspense be handed over merely to positivity or calculations of utility. For a subjectively grounded natural rights theory, or even a theory of natural law overweighted towards natural right, this handing over is inevitable, whereas it is not for a natural law theory mainly orientated towards equity and the ad alterum, and predicated on the participatory discernment by synderesis and phronesis of the eternally good.

EDITORIAL STATEMENT: This is the third installment of a six-part series by John Milbank on natural law and natural right. The installments will be collected here as they are published. The fourth installment is now available.

[1] See: Milbank, “Against Human Rights.”

[3] See Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: CUP, 2003).

[4] See John Witte Jr., The Reformation of Rights: Law, Religion and Human Rights in Early Modern Calvinism (Cambridge: CUP, 2007). Even if ‘human rights’ is here something of an anachronistic misnomer, the book makes an important addition to the history of rights theory.

[5] John Witte Jr, The Reformation of Rights, 143-207.

[6] Villey, La formation, 513-527.

[7] See Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Englightenment (Cambridge: CUP, 1996), 310-341 Moyn, Human Rights and the Uses of History, 1-18.

[8] Haakonssen, Natural Law and Moral Philosophy, passim.

[9] Villey, La formation, 344-345 Brett, Liberty, Right and Nature 123-137.

[10] See Milbank, “Against Human Rights.”

[11] Michel Villey, La formation de la pensée juridique moderne (Paris|: PUF, 2003). For a summary and defence of Villey’s case against recent detractors, see Milbank, “Against Human Rights.”

[12] See Olivier Boulnois, ‘”La plus haute pauvreté. L’expérience franciscain: un défi pour la pensée” in French language Communio, June-July 2014, 1-10.

[13] On the spiritual Franciscans and animality, see Giorgio Agamben, The Highest Poverty: Monastic Rules and Forms of Life, trans. Adam Kotsko (Stanford: SUP, 2013).

[14] Although this can seem likely a wildly idealist thesis, it is not, because the respective thought of the Mendicant orders was rooted in new and revolutionary liturgical and social practices. This points to the primacy of the “ritual,” which binds seamlessly together the mental and the corporeal, for historical development, rather than either the mental or the practical, taken in an unreal separation from each other. For objections to the Franciscan/Dominican contrast as fundamental to political theory, see Brett, Liberty, Right and Nature, 10-87. However, I find her reasonings here hard to follow (despite the instructive character of the book as a whole) and seemingly obfuscatory at points, compared, for example with the treatment by Boulnois.

[15] See Brett, Liberty, Right and Nature, 165-204.

[16] See Johannes Hoff, The Analogical Turn: Rethinking Modernity with Nicholas of Cusa (Grand Rapids, Mich: Eerdmans, 2013 John Milbank, ‘From Mathesis to Mathexis: Nicholas of Cusa’s Post-Nominalist Realism’ in Relire Cusanus, ed Isabelle Moulin (Paris: Seuil, forthcoming).

[17] John Locke, Two Treatises of Government, Book II, Chap. II, 6.

[18] Hobbes, Leviathan, The Second Part, Chap. XXXI, [187]: ‘To rule by words requires that such words be manifestly made known for else there are no Lawes………..God declareth his Lawes three ways: by the Dictates of Naturall Reason, by Revelation, and by the Voyce of some man…’ That is to say, natural reason discerns God’s speaking in the material conditions of human beings’ lives. Here Hobbes’s materialism lines up with his extreme voluntarist positivity as to the operation of revelation, which is itself but the command of confirmation of positive political rule, with the temporally apolitical message of the New Testament itself for Hobbes pointing to an eschatological but material divine rule.

[19] George Parkin Grant, English-Speaking Justice (South Bend, IN: Notre Dame, 1985) Jean-Claude Michéa, The Realm of Lesser Evil, trans. David Fernbach (Cambridge: Polity, 2009).

[20] Werner Hammacher, “The Right Not to Use Rights” in Political Theologies: Public Religions in a Post-Secular World ed. Hent de Vries and Lawrence E. Sullivan (New York: Fordham UP, 2006), 671-690.

[21] Edmund Burke, Reflection on the Revolution in France (London: Penguin, 1969), 153.

[22] Locke, Two Treatises, Second Treatise, Chap. V, 27: “Though the earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.” Hobbes construes the state of nature more anarchically and accordingly sees the divine claim to ownership of all, demanding our respect of others as only operative through political constitutions. Thus for Hobbes the original right over oneself is in the state of nature also an unlimited right over others. In the natural “condition of Warre of every one against every one . . . every one is governed by his own Reason . . . in such a condition, every man has a Right to everything even to one anothers body” (Leviathan, Part I, Chap XIV [64].). For an implicit defence of C.B. Macpherson’s notion of the centrality of “possessive individualism” in Locke, against the revisionary readings of John Dunn and others, see Ellen Meiksins Wood, Liberty and Property: A Social History of Western Political Thought from Renaissance to Enlightenment (London: Verso, 2012), 256-287.

[23] Reflections on the Revolution, 151-152.

[24] Reflections on the Revolution, 153-154. One is tempted to say that the real cleavage in modern political thought is between Hobbes and Burke and not between left and right.

[25] Marx, “On the Jewish Question,” 229.

[26] Marx, “On the Jewish Question,” 230.

[27] Karl Marx, “On the Jewish Question” in Early Writings (Harmondworth: Penguin, 1975), 228-234.

[30] Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: ChUP, 1996).

[31] Marx, “On the Jewish Question,” 232.

[35] It is for this reason that, by contrast, genuine socialism is always in some way (as with Proudhon, for example) religious and to do with participation in objective and transcendent justice through relational and reciprocal mediation.

[36] Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, 1968), 290-302.

[37] Jacques Rancière, “Who is the Subject of the Rights of Man?” in South Atlantic Quarterly, 103, (2/3) (2004), 297-310.

[38] Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Palo Alto: Stanford, 1998) and State of Exception, trans. Kevin Attell (Chicago: Chicago UP, 2005). But conversely Rancière is right to say that Agamben speaks as if being outcast were the inevitable human ontological destiny—at once our self-destruction and source of eschatological hope in an impossible animal humanity, beyond culture and the human as we know it. But as with Marx, once more this just reworks a Rousseauist construal of natural right.

[39] See Simone Meysonnier, La Balance et l’Horloge: La genèse de la pensée libérale en France au XVIIIe siècle (Montreuil Les Éditions de la Passion, 1989), 35-51 Serge Latouche, L’invention de l’économie (Paris: Albin Michel, 2005), 154-160.

[40] See Hammacher, “The Right not to Use Rights.” But Hammacher in the end also goes in the impossible Rousseauist direction of wanting yet more unmediated rights attached to supposedly pure Levinasian alterities.

[41] See Tristan Garcia, Form and Object: A Treatise on Things, trans. Mark Allen Ohm and Jon Cogburn (Edinburgh: Edinburgh UP, 2014).

[42] See John Milbank, Theology and Social Theory, Second Edition (Oxford: Blackwell, 2006), 147-176.

[43] Hannah Arendt, On Revolution (London: Penguin, 2009), 89 Moyn, Human Rights and the Uses of History, 8-10.

[45] Recently the French State has removed the reference to “the Supreme Being,” without seeing just how this compromises even the Republican rights legacy.

[46] This despite the fact that the Church was almost evenly split with respect to the revolution and tried to mediate – for example, early on voting only by a relatively narrow majority against the suppression of the role of the three estates in the voting of the Estates General. Especially was this true of the parish priests, whose sympathies were split between their commoner status inclining them towards democracy, and their belonging to one of the three estates, which gave them a Tocquevillian sense (mistakenly not allowed to them by Burke, who tends to underplay the in equity and decadence of the 18 th century France, in accordance with his ‘distributional blindspot’ as discussed in the main text below) of the importance for freedom and justice of the ‘aristocratic’ function in the genuine sense, besides a Maistrian sense of the importance of adverting to transcendence as a check upon behaviour which otherwise requires sheer brute force (Burke’s very own major point) See John McManners’ fine study, The French Revolution and the Church (London: SPCK, 1969). The turning point of the revolution seems indeed to have come with the break with the Church, when it was suggested that its structures be totally democratised in a way that is obviously, for the Catholic faith unacceptable. See William Doyle, The French Revolution: A Very Short Introduction (Oxford: OUP, 2009).

[47] French civil religion has later come to incorporate even a quasi-establishment of Catholicism and a development of a more ‘social’ reading, as opposed to the originally political-republican reading of its character by Durkheim and Mauss, in ways that covertly draw much upon the counter-revolutionary traditions of de Maistre and de Bonald. Yet if the the thought of the latter was a kind of socialised occasionalism and ontologism (after Malebranche), the same thing is true in a rather different way of the the proto-revolutionary thought of Rousseau himself. See note 2 above.The theological continuities here across political divides are striking.

[48] Luc Ferry and Alain Renaut, From the Rights of Man to the Republican Idea.

[49] Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (Cambridge: CUP, 1991), “Metaphysical First Principles of the Doctrine of Right,” II, Section I, p.123-149 “Metaphysical Principles of the Doctrine of Virtue,” I Book I, Section I, pp. 239-40.

Featured Image: Giotto, Sermon to the Birds [detail], c. 1290 Source: Wikimedia, PD-Old-100.

The Declaration of Independence and Natural Rights

Thomas Jefferson, age 33, arrived in Philadelphia on June 20, 1775, as a Virginia delegate to the Second Continental Congress. Fighting at Lexington, Concord, and Bunker Hill had already broken out between the colonists and British troops. Even so, most in Congress wanted to work out some mutual agreement with the mother country.

For more than a year, the Americans had sent petitions to England proclaiming their grievances against the British government. Colonists even appealed to the British people, pleading with them to elect different members of Parliament who would be more open to compromise. But the "British brethren" refused to do this.

Soon after Jefferson arrived in Philadelphia, Congress assigned him to draft a document explaining why the colonists had taken up arms against England. Even at this late date, the Congress still blamed only Parliament and the king's government ministers, not King George himself, for the growing conflict. Jefferson's Declaration of the Causes and Necessity for Taking Up Arms stopped short of declaring independence, but pointed out the folly of governing the American colonies from England.

Neither Parliament nor King George, however, were interested in negotiations to prevent all-out war. In August 1775, King George issued a proclamation charging that the Americans "had proceeded to open and avowed rebellion." A few months later, Parliament passed a significant act that placed the American colonies outside the king's protection. This act allowed the seizing of American ships, justified the burning of colonial towns, and led to sending war ships and troops, including foreign mercenaries, to put down the rebellion. Meanwhile, the royal governor of Virginia offered freedom to slaves who joined the British cause. These actions by the British king and government inflamed Americans who were undecided about independence and made war with England all but certain.

In May 1776, the Continental Congress took a fateful step and passed a resolution that attacked King George himself. This was not the first time in English history that such a thing had occurred. In 1688, Parliament had similarly denounced King James II. This led to the so-called Glorious Revolution , which drove James off the throne. Now, almost 100 years later, a formal declaration of independence by the Continental Congress was the only thing standing in the way of a complete break with King George.

The Declaration of Independence

Even before the Continental Congress declared independence, most colonies along with some towns, counties, and even private organizations had issued their own declarations. In most cases, these statements detailed British abuses of power and demanded the right of self-government.

On June 8, 1776, the Continental Congress voted to write a declaration of independence and quickly appointed a committee to draft a formal document. But the job of actually writing the draft fell to Thomas Jefferson, mainly because John Adams and other committee members were busy trying to manage the rapidly escalating war with England.

Working off and on while attending to other duties, Jefferson completed his draft of the declaration in a few days. He argued in his opening two paragraphs that a people had the right to overthrow their government when it abused their fundamental natural rights over a long period of time. Then in a direct attack on King George, Jefferson listed 20 instances when the king violated the rights of the American colonists. Having thoroughly laid out his proof that the king was a "tyrant" who was "unfit to be the ruler of a people," Jefferson continued on to condemn the British people. "These unfeeling brethren," he wrote, had reelected members of Parliament who had conspired with the king to destroy the rights of the colonists. Jefferson ended his draft by stating, "we do assert and declare these colonies to be free and independent states. . . ."

When Jefferson submitted his draft to the Congress on June 28, the delegates spent little time on his opening paragraphs, which today are the most famous parts of the Declaration of Independence. Instead, they concentrated on Jefferson's list of grievances against King George and the British people.

The delegates made some small changes to improve the Declaration's clarity and accuracy. But they also ripped apart the last sections of Jefferson's draft, deleting about 25 percent of it. They eliminated most of his harsh language directed against the British people and totally cut out Jefferson's passionate assault on slavery and the slave trade.

The removal of the section on slavery, Jefferson's last grievance against the king, probably resulted from objections by Southern slave-holding delegates. But Jefferson's argument was weakened when he blamed the king alone for continuing the slave trade and then condemned him for offering freedom to slaves who joined the British in fighting the American rebels.

Jefferson grew depressed as more and more of his words were cut or changed. He later wrote that the Congress had "mangled" his draft.

On July 2, 1776, the Continental Congress voted to declare the independence of the American colonies from English rule. On the Fourth of July, they approved the final edited version of the Declaration of Independence . There would be no turning back now.

Natural Rights

The members of the Continental Congress made only two minor changes in the opening paragraphs of Jefferson's draft declaration. In these two paragraphs, Jefferson developed some key ideas: "all men are created equal," "inalienable rights," "life, liberty, and the pursuit of happiness." Where did Jefferson get these ideas?

Jefferson was a man of the Enlightenment . This was the period during the 17th and 18th centuries when thinkers turned to reason and science to explain both the physical universe and human behavior. Those like Jefferson thought that by discovering the "laws of nature" humanity could be improved.

Jefferson did not invent the ideas that he used to justify the American Revolution. He himself said that he had adopted the "harmonizing sentiments of the day." These ideas were, so to speak, "in the air" at the time.

As a man of the Enlightenment, Jefferson was well acquainted with British history and political philosophy. He also had read the statements of independence drafted by Virginia and other colonies as well as the writings of fellow revolutionaries like Tom Paine and George Mason . In composing the declaration, Jefferson followed the format of the English Declaration of Rights , written after the Glorious Revolution of 1689.

Most scholars today believe that Jefferson derived the most famous ideas in the Declaration of Independence from the writings of English philosopher John Locke . Locke wrote his Second Treatise of Government in 1689 at the time of England's Glorious Revolution, which overthrew the rule of James II.

Locke wrote that all individuals are equal in the sense that they are born with certain "inalienable" natural rights. That is, rights that are God-given and can never be taken or even given away. Among these fundamental natural rights, Locke said, are "life, liberty, and property."

Locke believed that the most basic human law of nature is the preservation of mankind. To serve that purpose, he reasoned, individuals have both a right and a duty to preserve their own lives. Murderers, however, forfeit their right to life since they act outside the law of reason.

Locke also argued that individuals should be free to make choices about how to conduct their own lives as long as they do not interfere with the liberty of others. Locke therefore believed liberty should be far-reaching.

By "property," Locke meant more than land and goods that could be sold, given away, or even confiscated by the government under certain circumstances. Property also referred to ownership of one's self, which included a right to personal well being. Jefferson, however, substituted the phrase, "pursuit of happiness," which Locke and others had used to describe freedom of opportunity as well as the duty to help those in want.

The purpose of government, Locke wrote, is to secure and protect the God-given inalienable natural rights of the people. For their part, the people must obey the laws of their rulers. Thus, a sort of contract exists between the rulers and the ruled. But, Locke concluded, if a government persecutes its people with "a long train of abuses" over an extended period, the people have the right to resist that government, alter or abolish it, and create a new political system.

Jefferson adopted John Locke's theory of natural rights to provide a reason for revolution. He then went on to offer proof that revolution was necessary in 1776 to end King George's tyranny over the colonists.

"All Men Are Created Equal"

Since 1776, no words in the Declaration of Independence have received more attention than Jefferson's phrase, "All men are created equal." But how could Jefferson and the other signers of the declaration believe this when slavery existed in the colonies? Some slave owners argued that slaves would become equal and worthy of natural rights only when they became civilized. For Jefferson, a life-long owner of slaves, this was a much more complex issue.

At an early age, Jefferson concluded that slavery was wrong. To his credit, he attempted to denounce slavery, or at least the slave trade, in the Declaration of Independence. Some scholars believe that Jefferson agreed with the Scottish philosopher, Francis Hutcheson , that all men are born morally equal to one another and that "Nature makes none masters, none slaves." But, how does this explain that Jefferson kept most of his slaves throughout his lifetime?

It appears that while Jefferson opposed slavery in principle, he saw no obvious way to end it once it became established. If the slaves were freed all at once, Jefferson feared that white prejudice and black bitterness would result in a war of extermination that the whites would win. He fretted that if slaves were individually emancipated they would have nowhere to go and no means to survive on their own. Of course, Jefferson along with most other Southern plantation owners were also economically dependent on slave labor.

The best Jefferson could come up with was a plan to take slave children from their parents and put them in schools to be educated and taught a trade at public expense. Upon becoming adults, they would be transported to a colony somewhere and given tools and work animals to start a new life as a "free and independent people."

Nothing ever came of Jefferson's fanciful plan. Slavery in the new United States of America would last another 89 years until the end of the Civil War. But even then, the equality promised in the Declaration of Independence was denied not only to African Americans, but also to other minorities and women. Even today, Americans are still not certain what equality means in such areas as affirmative action, sex discrimination, and gay rights.

The Declaration of Independence has no legal authority. It is not part of the basic law of the United States like the Constitution and the Bill of Rights. But its words have resonated as the ideals of the United States. Abolitionists in the 19th century asked Americans to live up to the ideal of equality and eliminate slavery. The civil rights movement of the 20th century pressured America to honor the commitment made in the declaration. The document still speaks to us today about the rights of Americans, as it did in 1776.

For Discussion and Writing

1. List the main ideas in John Locke's theory of natural rights and revolution. Then read Jefferson's first two paragraphs in the Declaration of Independence. What similarities and differences do you see?
2. Write a letter to Thomas Jefferson expressing your views on his ideas about equality and slavery.
3. "All men are created equal." What do you think this means for us today?

For Further Information

Two interviews with with Pauline Maier, a Professor of History at MIT and author of American Scripture: Making the Declaration of Independence. PBS Newhour

A C T I V I T Y

"Life, Liberty, and the Pursuit of Happiness"

In this activity, students discuss some of the ideals in the Declaration of Independence.

Words related to natural rights

Rashad was there to celebrate the release of the Civil Rights drama Selma.

True, this may not be what James Madison had in mind when he was writing the Bill of Rights.

Would the Democrats rescind those rights if they were to return to power?

In 2007 he said he had discovered a cure for AIDS using natural herbs.

In October, he traveled to Denver with Fry to support his work with LGBT rights organization The Matthew Sheppard Foundation.

It is full of poetic feeling, and the flesh tints are unusually natural.

The place was well defended by earthworks and natural parapets, and for several hours the issue of the contest was doubtful.

In the old world, poverty seemed, and poverty was, the natural and inevitable lot of the greater portion of mankind.

Whatever the species, it is well to imitate the natural conditions as much as possible in the way of soil.

Piedmont alone vies with her, and is improving far more rapidly, but Lombardy has great natural capacities peculiarly her own.

The natural rights of the First Amendment lead to the "preferred position" doctring

Rights embodied within documents are constitutional, or civil, rights, which serve to shape the values shared by a people. In the U.S. system, individuals can bring claims of such rights to courts, which have the power to enforce them. With the possible exception of equality, which was later recognized in the equal protection clause of the Fourteenth Amendment (1868), it is difficult to identify any rights outside the First Amendment that are more closely associated with the concept of natural rights from this stem the arguments that these rights should enjoy a &ldquopreferred position&rdquo and that they are relatively absolute.

Embodying such rights within a written text is designed to preclude the necessity for resorting to extralegal means for securing their protection, but such rights would arguably be legitimate moral claims even if they were not embodied in the constitutional text. For example, the Supreme Court has on occasion made decisions on the basis of unenumerated general moral principles, or natural rights, rather than on the basis of a specific constitutional provision. Some believe the modern right to privacy is such a judicially created right.

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment . This article was originally published in 2009.

August 11, 2010

A mere thirty-three years ago, on January 20, 1977, Jimmy Carter inaugurated his presidency by proclaiming from the Capitol steps, "Because we are free we can never be indifferent to the fate of freedom elsewhere…. Our commitment to human rights must be absolute." Most people had never heard of "human rights." Except for Franklin Delano Roosevelt in a couple of passing references, no president had really mentioned the concept, and it never had gained much traction around the world either. Carter’s words sparked an intense debate at every level of government and society, and in political capitals across the Atlantic Ocean, about what it would entail to shape a foreign policy based on the principle of human rights.

This essay is adapted from Samuel Moyn's The Last Utopia: Human Rights in History, forthcoming from Harvard/Belknap. Copyright by Harvard/Belknap. Printed by permission.

The concept of rights, including natural rights, stretches back centuries, and "the rights of man" were a centerpiece of the age of democratic revolution. But those droits de l’homme et du citoyen meant something different from today’s "human rights." For most of modern history, rights have been part and parcel of battles over the meanings and entitlements of citizenship, and therefore have been dependent on national borders for their pursuit, achievement and protection. In the beginning, they were typically invoked by a people to found a nation-state of their own, not to police someone else’s. They were a justification for state sovereignty, not a source of appeal to some authority&mdashlike international law&mdashoutside and above it.

In the United States, rights were also invoked to defend property, not simply to defend women, blacks and workers against discrimination and second-class citizenship. The New Deal assault on laissez-faire required an unstinting re-examination of the idea of natural rights, which had been closely associated with freedom of contract since the nineteenth century and routinely defended by the Supreme Court. By the 1970s, rights as a slogan for democratic revolution seemed less pressing, and few remembered the natural rights of property and contract that the New Deal had once been forced to challenge. Carter was free to invoke the concept of rights for purposes it had never before served. (Arthur Schlesinger Jr. once called on future historians to "trace the internal discussions…that culminated in the striking words of the inaugural address." No one, however, yet knows exactly how they got there.)

It looks like Carter was an exception in another sense. He inaugurated the era of human rights in this country, but now it seems to be fading. Bill Clinton dabbled in human rights while outlining a new post&ndashcold war foreign policy, but the Democratic politician now in the White House has spurned them. Few developments seem more surprising than the fact that Barack Obama rarely mentions human rights, especially since past enthusiasts for them like Samantha Power and Anne-Marie Slaughter have major roles in his foreign policy shop. Obama has given no major speech on the subject and has subordinated the concerns associated with human rights, such as taking absolute moral stands against abusive dictators, to a wider range of pragmatic foreign policy imperatives. As his Nobel remarks made plain, Obama is a "Christian realist" inclined to treat human sin, not human rights, as the point of departure for thinking about America’s relation to the world’s many injustices and horrors.

The rise and fall of human rights as an inspirational concept may seem shocking, but perhaps it is less so on second glance. Ever since Carter put human rights on the table, Republican presidents have found uses for them too, typically by linking them to "democracy promotion" abroad. There is no denying the powerful growth of nongovernmental organizations in the United States and around the world that has occurred since slightly before Carter’s time, and impressively ever since. But George W. Bush, placing himself in an almost equally longstanding tradition, invoked human rights as the battle cry for the neoconservative vision of transforming the Middle East and beyond&mdashat the point of a gun, if necessary&mdashperhaps sullying them beyond recuperation. Obama seems to think so. If their current abeyance is surprising, perhaps it’s because of a historical mistake: the belief that human rights were deeply ingrained in American visions of the globe in the first place.

But what about the 1940s, when FDR essentially coined the phrase "human rights" and set in motion a series of events that culminated in the United Nations&ndashsponsored Universal Declaration of Human Rights in 1948? Beginning in the 1990s, when human rights acquired a literally millennial appeal in the public discourse of the West during outbreaks of ethnic cleansing in Southeastern Europe and beyond, it became tempting to treat 1948 as a moment of annunciation, with large political consequences. Carter, and the 1970s, were rarely mentioned. It became common to assume that, ever since their birth in a moment of postgenocidal revulsion and wisdom, human rights had become embedded slowly but steadily in humane consciousness in what amounted to a revolution of moral life. In a euphoric mood, high-profile observers like Michael Ignatieff believed that secure moral guidance, born of incontestable shock about the Holocaust, was on the verge of displacing self-interest and power as the foundation of international relations. In Samantha Power’s "A Problem From Hell": America and the Age of Genocide (2002), Raphael Lemkin, who crafted the draft resolution of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was dusted off as a human rights sage and hero, with Carter earning attention only for failing to intervene against Pol Pot’s atrocities.

In fact, when "human rights" entered the English language in the 1940s, it happened unceremoniously, even accidentally. Human rights began as a very minor part of a hopeful alternative vision to set against Adolf Hitler’s vicious and tyrannical new order. In the heat of battle and shortly thereafter, a vision of postwar collective life in which personal freedoms would coalesce with more widely circulating promises of some sort of social democracy provided the main reason to fight the war.

It’s important to enumerate what human rights, in the 1940s, were not. Ignatieff was wrong. They were not a response to the Holocaust, and not focused on the prevention of catastrophic slaughter. Though closely associated with the better life of social democracy, only rarely did they imply a departure from the persistent framework of nation-states that would have to provide it.

Above all, human rights were not even an especially prominent idea. Unlike later, they were restricted to international organization, in the form of the new United Nations. They didn’t take hold in popular language and they inspired no popular movement. Whether as one way to express the principles of Western postwar societies or even as an aspiration to transcend the nation-state, the concept of human rights never percolated publicly or globally during the 1940s with the fervor it would have in the 󈨊s and the 󈨞s, including during negotiations over the Universal Declaration.

What if the 1940s were cut loose from the widespread myth that they were a dry run for the post&ndashcold war world, in which human rights began to afford a glimpse of the rule of law above the nation-state? What if the history of human rights in the 1940s were written with later events given proper credit and a radically different set of causes for the current meaning and centrality of human rights recaptured? The central conclusion could only be that, however tempting, it is misleading to describe World War II and its aftermath as the essential source of human rights as they are now understood.

From a global perspective, the brief career of human rights in the 1940s is the story of how the Allied nations elevated language about human rights as they reneged on the earlier wartime promise&mdashmade in the 1941 Atlantic Charter&mdashof the self-determination of peoples. Global self-determination would have spelled the end of empire, but by war’s end the Allies had come around to Winston Churchill’s clarification that this promise applied only to Hitler’s empire, not empire in general (and certainly not Churchill’s). The Atlantic Charter set the world on fire, but because similar language was dropped from the Universal Declaration, human rights fell on deaf ears. It is not hard to understand why. Human rights turned out to be a substitute for what many around the world wanted: a collective entitlement to self-determination. To the extent they noticed the rhetoric of human rights at all, the subjects of empire were not wrong to view it as a consolation prize.

But even when it comes to the Anglo-American, continental European and second-tier states where human rights had at least some minor publicity, the origins of the concept need to be treated within a narrative explaining not their annunciation but their general marginality throughout the mid- to late 1940s. In the beginning, as a vague synonym for some sort of social democracy, human rights failed to address the genuinely pressing question of which kind of social democracy to bring about. Should it be a version of welfarist capitalism or a full-blown socialism? A moral language announcing standards above politics offered little at a moment in world history of decisive political choice. By 1947&ndash48 and the crystallization of the cold war, the West had succeeded in capturing the language of human rights for its crusade against the Soviet Union the language’s main advocates ended up being conservatives on the European continent. Having been too vague to figure in debates about what sort of social democracy to bring about in the mid-1940s, human rights proved soon after to be just another way of arguing for one side in the cold war struggle. Never at any point were they primarily understood as breaking fundamentally with the world of states that the United Nations brought together.

In considering the origins and peripheral existence of the concept of human rights, the focus should be on the formation of the United Nations, since until not long before Carter’s declaration human rights were a project of UN machinery only, along with regionalist initiatives, and had no independent meaning. Yet the founding of the United Nations, and the forging of its Universal Declaration, actually presents a very different story line from the one that actors in the drama of human rights in the 1990s would have us believe.

Recall that FDR had to be cajoled into accepting the idea of an international organization. In the Dumbarton Oaks documents, the startling outlines of a prospective international organization for the postwar era discussed by the Allies in 1944, it was clear that the wartime rhetoric that sometimes included the new phrase "human rights" masked the agendas of great-power realism. And the campaign by various individuals and groups up to and during the epoch-making San Francisco conference on the United Nations in mid-1945 to alter this tactic failed spectacularly, despite the symbolic concession of the reintroduction of the concept of human rights into the charter written there. The victorious wartime alliance had been enshrined as the security council of the new world government, as its seat of true authority, and while some minor states and private citizens attempted to resist a UN that would simply entrench and balance the power of the war’s victors, they did not succeed.

If a heroic view of human rights is familiar, it is because of two common but untenable ways of remembering the period. The first is to overstate&mdashoften drastically&mdashthe goals and effects of the campaign against the Dumbarton Oaks settlement. The second is to isolate the path toward the Universal Declaration as a road still traveled, even if the cold war temporarily erected a barrier on it. But instead of a rousing story of how the document emerged against all odds, one needs to tell an unflattering story about why no one cared about it for decades. As an early NGO chief, Moses Moskowitz, aptly observed later, the truth is that human rights "died in the process of being born." Why they were born again for our time is therefore the true puzzle.

The United States, which had helped drive the global inflation of wartime hopes, quickly retreated from the language it had helped to introduce, leaving Western Europe alone to cultivate it. Even there&mdashespecially there&mdashthe real debate in domestic politics was about how to create social freedom within the boundaries of the state. Coming after the announcement of the Truman Doctrine in March 1947, with its call for a decisive choice between two "alternative ways of life," the passage of the Universal Declaration in December 1948 offered the mere pretense of unity at a crossroads for humanity. And already by that point, with most emphasis on the right of conscience, European conservatives had captured the language of human rights by deploying it as a synonym for moral community that secularism (and the Soviets) threatened, while few others learned to speak it.

In any case, "human rights" meant something different in the 1940s. Despite its new international significance, its core meaning remained as compatible with the modern state as the older tradition of the domestic rights of man had been. Both were the background principles of the nations united by them. In this sense, if in few others, "human rights" preserved a memory of the "rights of man and citizen" more than summoning a utopia of supranational governance through law. The inclusion of social and economic rights in the mid-1940s very much mattered: still relevant rights to economic security and social entitlements were prominent and, unlike now, surprisingly consensual. But they were earlier products of citizenship struggles, and have still barely affected the international order.

From another view, however, the postwar moment gave the antique idea of declaring rights an altogether new cast: neither a genuine limitation of prerogative, as in the Anglo-American tradition, nor a statement of first principles, as in the French, the Universal Declaration emerged as an afterthought to the fundamentals of world government it did nothing to affect. No one registered this fact more clearly than the lone Anglo-American international lawyer still campaigning for human rights in 1948, Hersch Lauterpacht, who denounced the Universal Declaration as a humbling defeat of the ideals it grandly proclaimed.

After the 1970s, and especially after the cold war, it became usual to regard World War II as a campaign for universal justice, with the shock of the discovery of the camps prompting unprecedented commitment to a humane international order. Rather than Moskowitz’s story of death in birth, the proclamation of human rights became one of birth after death, especially Jewish death. In the postwar moment, however, across weeks of debate around the Universal Declaration in the UN General Assembly, the genocide of the Jews went unmentioned, despite the frequent invocation of other dimensions of Nazi barbarity to justify specific items for protection, or to describe the consequences of leaving human dignity without defense.

The more recent phenomenon of Holocaust memory has also encouraged a mystified understanding of the Nuremberg trials, which in reality contributed to the ignorance of the specific plight of the Jews in the recent war rather than establishing a morally familiar tradition of responding to mass atrocity. The Allies coined the new penal concept of "crimes against humanity" in the days between Hiroshima and Nagasaki, as they struggled with how to treat the defeated enemy elites. But on the rare occasion the notion referred to the Jewish tragedy, it got short shrift at Nuremberg, at a time when the West knew little and cared less about the Holocaust, and the Soviets wanted patriotic and antifascist victims rather than Jewish ones.

The concept of human rights was not prominently invoked in the proceedings. It is not at all obvious that, at the time, Nuremberg and related legal innovations like the genocide convention were conceived as part of the same enterprise as the itemization of human rights, let alone falling under their umbrella&mdashthough they are now often inaccurately described as if they were a single, though multifaceted, achievement. Lemkin, the main force behind the genocide convention, understood his campaign to be at odds with the UN’s human rights project. In any case, Lemkin’s project was even more marginal and peripheral in the public imagination than the Universal Declaration, passed by the General Assembly the day after the passage of the genocide resolution.

If there is a pressing reason to return to the history of human rights in the 1940s, it is not because of their importance at the time. The Universal Declaration was less the annunciation of a new age than a funeral wreath laid on the grave of wartime hopes. The world looked up for a moment. Then it returned to the postwar agendas that had crystallized at the same time that the United Nations emerged. A better way to think about human rights in the 1940s is to come to grips with why they had no function to play then, compared with the ideological circumstances three decades later, when they made their true breakthrough.

During that interval, two global cold war visions separated the United States and the Soviet Union, and the European continent they were splitting between themselves. The struggle for the decolonization of empire&mdashmovements for the very self-determination that had been scuttled as human rights rose&mdashmade the cold war competition global, even if some new states strove to find an exit from its rivalry to chart their own course. Whereas the American side dropped human rights, both the Soviet Union and anticolonialist forces were more committed to collective ideals of emancipation like communism and nationalism as the path into the future. They did not cherish individual rights directly, to say nothing of their enshrinement in international law. Utopian ideals were not lacking, but human rights were not one of them.

During the 1960s crisis of superpower order, the domestic consensus in the East and West around the terms of the cold war began to fracture. Without ever dying in the East, the dream of "building socialism" lost its appeal, while in the West the anxieties of the cold war and early worries about its costs drove a new generation to depart from the postwar consensus. Yet in the ensuing explosion of dissent, it was not human rights but other utopian visions that prospered. There were calls for community at home to redeem the United States from hollow consumerism for "socialism with a human face" in the Soviet empire for further liberation from "neocolonialism" in the third world. At the time, there were next to no nongovernmental organizations that pursued human rights Amnesty International, a fledgling group, remained practically unknown. From the 1940s on, the few NGOs that did include human rights on their agenda worked invisibly and bureaucratically for them within the UN’s framework, but their failure over thirty years to become prominent, let alone effective, confirmed the agonizing fruitlessness of this project. As Moskowitz observed bitterly in the early 󈨊s, the human rights idea had "yet to arouse the curiosity of the intellectual, to stir the imagination of the social and political reformer and to evoke the emotional response of the moralist." He was right.

But within one decade, human rights would begin to be invoked across the developed world and by many more ordinary people than ever before. Instead of implying what they had come to mean at the United Nations by the 1960s&mdashfurther colonial liberation&mdashhuman rights were used by new forces on the ground, like NGOs, and most often meant individual protection against the state and by some authority above it. Amnesty International became visible and, as a beacon of new ideals, won the Nobel Peace Prize in 1977&mdashin America, Carter’s year&mdashfor its work. The popularity of its mode of advocacy forever transformed the basis for agitating for humane causes, and spawned a brand and age of internationalist citizen engagement.

At the same time, Westerners left the dream of revolution behind, both for themselves and for the third world they had once ruled, and adopted other tactics, envisioning an international law of human rights as the steward of utopian norms and the mechanism of their fulfillment. Even politicians, Carter towering over them all, started to invoke human rights as the guiding rationale of the foreign policy of states for Americans, it was a moment of recovery from Henry Kissinger’s evil as well as the foreign policy, hatched by Democrats before Kissinger took power, that had led to the Vietnam disaster. After Amnesty won a Nobel Prize, other NGOs began to sprout: Helsinki Watch&mdashnow Human Rights Watch&mdashemerged the next year.

Most visible of all, the public relevance of human rights skyrocketed, as measured by the simple presence of the phrase in the newspaper, ushering in the recent supremacy of the notion compared with other schemes of freedom and equality. In 1977 the New York Times featured the phrase "human rights" five times more frequently than in any prior year. The moral world had changed. "People think of history in the long term," Philip Roth says in one of his novels, "but history, in fact, is a very sudden thing." Never has this been truer than when it comes to the history of human rights.

But how to explain the recent origins of what now looks like a short-lived faith? The designation of the 1940s as the era when contemporary global commitments were born is one version of a larger mistake. The roots of contemporary human rights are not to be found where pundits and professors have longed to find them: neither in Greek philosophy nor monotheistic religion, neither in European natural law nor early modern revolutions, neither in horror against American slavery nor Hitler’s Jew-killing. The temptation to ransack the past for such "sources" says far more about our own time than about the thirty years after World War II, during which human rights were stillborn and then somehow resurrected.

Human rights came to the world in a sort of gestalt switch: a cause that had once lacked partisans suddenly attracted them in droves. While accident played a role in this transformation, as it does in all human events, what mattered most was the collapse of universalistic schemes and the construction of human rights as a persuasive "moral" alternative to them. These prior universalistic schemes promised a free way of life but led to bloody morass, or offered emancipation from capital and empire but were now felt to be dark tragedies rather than bright hopes. They were the first candidates for replacing the failed premises of the early postwar order, but they failed too. In this atmosphere, an internationalism revolving around individual rights surged. Human rights were minimal, individual and fundamentally moral, not maximal, collective and potentially bloody.

Given its role in the 1940s, the United Nations had to be bypassed as human rights’ essential institution for them to matter. The emergence of new states through decolonization, earth-shattering in other respects for the organization, changed the meaning of the very concept of human rights but left it globally peripheral. It was, instead, only in the 1970s that a genuine social movement around human rights made its appearance, seizing the foreground by transcending government institutions, especially international ones. It, too, emphasized that human rights were a moral alternative to the blind alleys of politics.

To be sure, there were a number of catalysts for the explosion: the search for a European identity outside cold war terms the reception of Soviet and later Eastern European dissidents by Western politicians, journalists and intellectuals and the American liberal shift in foreign policy in new, moralized terms, after the Vietnam catastrophe. Equally significant, but more neglected, were the end of formal colonialism and a new view toward the third world. Empire was foreclosed, yet romantic hopes for decolonization were also smashed and the era of "failed states" was opening.

There is a great irony in the emergence of human rights as the last utopia when others failed. The moral claim to transcend politics that led people to ignore human rights in the 1940s proved to be the cause of the revival and survival of human rights three decades later, as "ideology" died. Not surprisingly, it was then that the phrase "human rights" became common parlance. And it is from that recent moment that human rights have come to define the hopes of the present day.

Beyond myth, the true history of human rights matters most of all so that we can confront their prospects today and in the future. A few holdouts aside, progressives have fully adopted human rights into&mdashor even as another phrase for&mdashtheir politics in the past few decades. And they are correct to do so, since many specific rights, such as principles of equality and well-being, or entitlements to work and education, are those whose content they have defended across modern history. Finally, there is no gainsaying the widespread germination and ambitious agendas of NGOs in the thirty years since human rights came to the world, most of which attempt pressing changes with the most honorable of intentions. All the same, to date human rights have transformed the terrain of idealism more than they have the world itself.

Moreover, human rights have many faces and multiple possible uses. As much as they call for social concern, they anchor property&mdashthe principle of rights having been most synonymous with this protection for most of modern history. They were put to use in the name of neoconservative "democracy promotion" and have justified liberal warfare and "intervention." They serve as the brand name for diverse schemes of global governance in which vulnerability and inequality persist. Tea Party Express chair Mark Williams recently claimed that his movement "is a Human Rights Movement (by virtue of being based on the greatest expression of Human Rights ever devised by our mortal hand&mdashthe United States Constitution)." What may matter is less the idea of human rights than its partisan interpretations and applications, which are inevitable.

If so, why persist in upholding the fiction that human rights name an inviolable consensus everyone shares? Like all universalist projects, human rights are violated every time they are interpreted and transformed into a specific program. Because they promise everything to everyone, they can end up meaning anything to anyone. Human rights have become an ideology&mdashours&mdashexcept that, as in the 1940s, it is now difficult to see how the pretense of agreement can help when there is no consensus about how, or even whether, to change the world.

This contemporary dilemma has to be faced squarely yet history as a celebration of origins will not offer any guidance. To be sure, Obama’s "Christian realism" is dubious too, and is no alternative to the human rights mindset of his recent Democratic predecessors. Carter and Obama have been the most assiduous presidential readers of Reinhold Niebuhr. But while Carter found in the Protestant divine the courage to indict national sin, Christian realism too often allows Americans to feel like children of light alone, facing darkness abroad rather than in themselves. Yet Obama’s initially surprising caution toward human rights remains useful: it suggests that the faith in the notion may be less deeply rooted than we thought, and not at all necessary. The real question is what to do with the progressive moral energy to which human rights have been tethered in their short career. Is the order of the day to reinvest it or to redirect it?

In his recent manifesto for a reclaimed social democracy, Ill Fares the Land, my late colleague Tony Judt stirringly calls for a revival of an unfairly scuttled domestic politics of the common good. Judt argues that if the left, after a long era of market frenzy, has lost the ability to "think the state" and to focus on the ways that "government can play an enhanced role in our lives," that’s in part because the ruse of international human rights lured it away. The antipolitics of human rights "misled a generation of young activists into believing that, conventional avenues of change being hopelessly clogged, they should forsake political organization for single-issue, non-governmental groups unsullied by compromise." They gave up on political tasks, Judt worries, for the satisfying morality of Amnesty International and other human rights groups.

Whether or not this description is correct, the retreat to the state as the forum of imagination and reform is not made any more plausible as a next step. After all, midcentury social democracy had its own global context. And today, as Judt points out, "The democratic failure transcends national boundaries." So it is definitely not a matter of choosing the state against the globe but of deciding how to connect our utopian commitments to make both more just, each goal being the condition of the other. The question remains not whether to have a language and strategy to confront a flawed world beyond our national borders it is which language and strategy to choose.

One thing is for sure: the lesson of the actual history of human rights is that they are not so much a timeless or ancient inheritance to preserve as a recent invention to remake&mdashor even leave behind&mdashif their program is to be vital and relevant in what is already a very different world than the one into which they exploded. It is up to us whether another utopia should take the place of human rights, just as they emerged on the ruins of prior dreams.

Samuel Moyn Samuel Moyn teaches law and history at Yale. His most recent book is Not Enough: Human Rights in an Unequal World (Harvard University Press).

Contents

The idea that certain rights are natural or inalienable also has a history dating back at least to the Stoics of late Antiquity, through Catholic law of the early Middle Ages, [8] and descending through the Protestant Reformation and the Age of Enlightenment to today. [9]

The existence of natural rights has been asserted by different individuals on different premises, such as a priori philosophical reasoning or religious principles. For example, Immanuel Kant claimed to derive natural rights through reason alone. The United States Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are … endowed by their Creator with certain unalienable Rights". [10]

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.” [11] 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. [12]

Ancient Edit

Stephen Kinzer, a veteran journalist for The New York Times and the author of the book All The Shah's Men, writes in the latter that:

The Zoroastrian religion taught Iranians that citizens have an inalienable right to enlightened leadership and that the duty of subjects is not simply to obey wise kings but also to rise up against those who are wicked. Leaders are seen as representative of God on earth, but they deserve allegiance only as long as they have farr, a kind of divine blessing that they must earn by moral behavior.

The 40 Principal Doctrines of the Epicureans taught that "in order to obtain protection from other men, any means for attaining this end is a natural good" (PD 6). They believed in a contractarian ethics where mortals agree to not harm or be harmed, and the rules that govern their agreements are not absolute (PD 33), but must change with circumstances (PD 37-38). The Epicurean doctrines imply that humans in their natural state enjoy personal sovereignty and that they must consent to the laws that govern them, and that this consent (and the laws) can be revisited periodically when circumstances change. [14]

The Stoics held that no one was a slave by nature slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca the Younger wrote:

It is a mistake to imagine that slavery pervades a man's whole being the better part of him is exempt from it: the body indeed is subjected and in the power of a master, but the mind is independent, and indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is confined. [15]

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." [16] 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." [17] Cicero argues in De Legibus that "we are born for Justice, and that right is based, not upon opinions, but upon Nature." [18]

Modern Edit

One of the first Western thinkers to develop the contemporary idea of natural rights was French theologian Jean Gerson, whose 1402 treatise De Vita Spirituali Animae is considered one of the first attempts to develop what would come to be called modern natural rights theory. [19]

Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage" [20] re-emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:

Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly. As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of everyone's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force. [21]

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." [22] 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, 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 [ citation needed ] .

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.” Hutcheson, however, 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 public Good." [23] 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." 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." [24]

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. According to Hegel, the same would not apply to those aspects that make one a person:

The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them. [25]

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. Some social contract theorists reasoned, however, 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 the people from abuse, and living henceforth under the legal rights of that authority [ citation needed ] .

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. [26] The de facto inalienability arguments of Hutcheson and his predecessors provided the basis for the anti-slavery movement to argue not simply against involuntary slavery but against any explicit or implied contractual forms of slavery. Any contract that tried to legally alienate such a right would be inherently invalid. Similarly, the argument was used by the democratic movement to argue against any explicit or implied social contracts of subjection (pactum subjectionis) by which a people would supposedly alienate their right of self-government to a sovereign as, for example, in Leviathan by Thomas Hobbes. According to Ernst Cassirer,

There is, at least, one right that cannot be ceded or abandoned: the right to personality. They charged the great logician [Hobbes] with a contradiction in terms. If a man could give up his personality he would cease being a moral being. … There is no pactum subjectionis, no act of submission by which man can give up the state of free agent and enslave himself. For by such an act of renunciation he would give up that very character which constitutes his nature and essence: he would lose his humanity. [27]

These themes converged in the debate about American independence. While Jefferson was writing the Declaration of Independence, Welsh nonconformist Richard Price sided with the colonist's claim that King George III was "attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title." [28] : 67 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." [28] : 67–68 Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:

Neither can any state acquire such an authority over other states in virtue of any compacts or cessions. This is a case in which compacts are not binding. Civil liberty is, in this respect, on the same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practise, so neither can any civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property. [28] : 78–79

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

Then it turned out to make considerable difference whether one said slavery was wrong because every man has a natural right to the possession of his own body, or because every man has a natural right freely to determine his own destiny. The first kind of right was alienable: thus Locke neatly derived slavery from capture in war, whereby a man forfeited his labor to the conqueror who might lawfully have killed him and thus Dred Scott was judged permanently to have given up his freedom. But the second kind of right, what Price called "that power of self-determination which all agents, as such, possess," was inalienable as long man remained man. Like the mind's quest for religious truth from which it was derived, self-determination was not a claim to ownership which might be both acquired and surrendered, but an inextricable aspect of the activity of being human. [30]

Meanwhile, in America, Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important", [31] and in the 1776 United States Declaration of Independence, famously condensed this to:

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

In the 19th century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U.S. constitution recognized and protected the institution of slavery. As a lawyer, future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van Zandt, who had been charged with violating the Fugitive Slave Act, that:

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

The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke 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, Patriot scholar and justice James Wilson criticized Burke's view as "tyranny". [32]

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". 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.

One criticism of natural rights theory is that one cannot draw norms from facts. [33] This objection is variously expressed as the is-ought problem, the naturalistic fallacy, or the appeal to nature. G.E. Moore, for example, said that ethical naturalism falls prey to the naturalistic fallacy. [ citation needed ] Some defenders of natural rights theory, however, counter that the term "natural" in "natural rights" is contrasted with "artificial" rather than referring to nature. John Finnis, for example, contends that natural law and natural rights are derived from self-evident principles, not from speculative principles or from facts. [33]

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. [34]

Thomas Hobbes Edit

Thomas Hobbes (1588–1679) included a discussion of natural rights in his moral and political philosophy. Hobbes' conception of natural rights extended from his conception of man in a "state of nature". Thus he argued that the essential natural (human) right was "to use his own power, as he will himself, for the preservation of his own Nature that is to say, of his own Life and consequently, of doing any thing, which in his own judgement, and Reason, he shall conceive to be the aptest means thereunto." (Leviathan. 1, XIV)

Hobbes sharply distinguished this natural "liberty", from natural "laws", 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." (Leviathan. 1, XIV)

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." (Leviathan. 1, XIV)

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 meaningless – "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 Edit

John Locke (1632 – 1704) was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke believed in a natural right to life, 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." [35] More recently, the eminent [36] 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. [37] [38] 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. [39] This position has also been sustained by Michael Zuckert. [40] [41] [42]

According to Locke, there are three natural rights:

• Life: everyone is entitled to live. [43]
• 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.

Locke in his central political philosophy believes in a government that provides what he claims to be basic and natural given rights for its citizens. These being the right to life, liberty, and property. Essentially Locke claims that the ideal government will encompass the preservations of these three rights for all, every single one, of its citizens. It will provide these rights, and protect them from tyranny and abuse, giving the power of the government to the people. However, Locke not only influenced modern democracy, but opened this idea of rights for all, freedom for all. So, not only did Locke influence the foundation of modern democracy heavily, but his thought seems to also connect to the social activism promoted in democracy. Locke acknowledges that we all have differences, and he believes that those differences do not grant certain people less freedom. [44]

In developing his concept of natural rights, Locke was influenced by reports of society among Native Americans, whom he regarded as natural peoples who lived in a "state of liberty" and perfect freedom, but "not a state of license". [45] It also informed his conception of social contract. Although he does not blatantly state it, his position implies that even in light of our unique characteristics we shouldn't be treated differently by our neighbors or our rulers. “Locke is arguing that there is no natural characteristic sufficient to distinguish one person from another…of, course there are plenty of natural differences between us” (Haworth 103). [46] What Haworth takes from Locke is that, John Locke was obsessed with supporting equality in society, treating everyone as an equal. He does though highlight our differences with his philosophy showing that we are all unique and important to society. In his philosophy, it's highlighted that the ideal government should also protect everyone, and provide rights and freedom to everyone, because we are all important to society. His ideas then were developed into the movements for freedom from the British creating our government. However, his implied thought of freedom for all is applied most heavily in our culture today. Starting with the civil rights movement, and continuing through women's rights, Locke's call for a fair government can be seen as the influence in these movements. His ideas are typically just seen as the foundation for modern democracy, however, it's not unreasonable to credit Locke with the social activism throughout the history of America. By founding this sense of freedom for all, Locke was laying the groundwork for the equality that occurs today. Despite the apparent misuse of his philosophy in early American democracy. The Civil Rights movement and the suffrage movement both called out the state of American democracy during their challenges to the governments view on equality. To them it was clear that when the designers of democracy said all, they meant all people shall receive those natural rights that John Locke cherished so deeply. “a state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another” (Locke II,4). [47] Locke in his papers on natural philosophy clearly states that he wants a government where all are treated equal in freedoms especially. “Locke’s views on toleration were very progressive for the time” (Connolly). [48] Authors such as Jacob Connolly confirm that to them Locke was highly ahead of his time with all this progressive thinking. That is that his thought fits our current state of democracy where we strive to make sure that everyone has a say in the government and everyone has a chance at a good life. Regardless of race, gender, or social standing starting with Locke it was made clear not only that the government should provide rights, but rights to everyone through his social contract. [49]

The social contract is an agreement between members of a country to live within a shared system of laws. Specific forms of government are the result of the decisions made by these persons acting in their collective capacity. Government is instituted to make laws that protect the three natural rights. If a government does not properly protect these rights, it can be overthrown. [50]

Thomas Paine Edit

Thomas Paine (1731–1809) further elaborated on natural rights in his influential work Rights of Man (1791), [51] emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances, they would be reduced to privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect – that of taking rights away. Rights are inherently in all the inhabitants but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. … They. consequently are instruments of injustice. The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

American individualist anarchists Edit

While at first American individualist anarchists adhered to natural rights positions, later in this era led by Benjamin Tucker, some abandoned natural rights positions and converted to Max Stirner's Egoist anarchism. Rejecting the idea of moral rights, Tucker said there were only two rights: "the right of might" and "the right of contract". [52] He also said, after converting to Egoist individualism, "In times past. it was my habit to talk glibly of the right of man to land. It was a bad habit, and I long ago sloughed it off. Man's only right to land is his might over it." [53]

According to Wendy McElroy:

In adopting Stirnerite egoism (1886), Tucker rejected natural rights which had long been considered the foundation of libertarianism. This rejection galvanized the movement into fierce debates, with the natural rights proponents accusing the egoists of destroying libertarianism itself. So bitter was the conflict that a number of natural rights proponents withdrew from the pages of Liberty in protest even though they had hitherto been among its frequent contributors. Thereafter, Liberty championed egoism although its general content did not change significantly. [54]

Several periodicals were "undoubtedly influenced by Liberty's presentation of egoism, including I published by C.L. Swartz, edited by W.E. Gordak and J.W. Lloyd (all associates of Liberty) The Ego and The Egoist, both of which were edited by Edward H. Fulton. Among the egoist papers that Tucker followed were the German Der Eigene, edited by Adolf Brand, and The Eagle and The Serpent, issued from London. The latter, the most prominent English-language egoist journal, was published from 1898 to 1900 with the subtitle 'A Journal of Egoistic Philosophy and Sociology ' ". [54] Among those American anarchists who adhered to egoism include Benjamin Tucker, John Beverley Robinson, Steven T. Byington, Hutchins Hapgood, James L. Walker, Victor Yarros and E.H. Fulton. [54]

Contemporary Edit

Many documents now echo the phrase used in the United States Declaration of Independence. The preamble to the 1948 United Nations 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 [ citation needed ] .

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. [55]

Contemporary political philosophies continuing the classical 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, [56] and Murray Rothbard. [57] 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." [58]

Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability. [59] This concept has been recognized by libertarians as being central to the question of voluntary slavery, which Murray Rothbard dismissed as illegitimate and even self-contradictory. [60] 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." [61]

Various philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to separate truly axiomatic rights from supposed rights, stating that any principle that requires itself to be disproved is an axiom. Critics have pointed to the lack of agreement between the proponents as evidence for the claim that the idea of natural rights is merely a political tool.

Hugh Gibbons has proposed a descriptive argument based on human biology. His contention is 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. [62]

Catholic Church Edit

The Catholic Church considers natural law a dogma. The Church considers that: "The natural law expresses the original moral sense which enables man to discern by reason the good and the evil, the truth and the lie: 'The natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin . . . But this command of human reason would not have the force of law if it were not the voice and interpreter of a higher reason to which our spirit and our freedom must be submitted. ' " [63] The natural law consists, for the Catholic Church, of one supreme and universal principle from which are derived all our natural moral obligations or duties. Thomas Aquinas resumes the various ideas of Catholic moral thinkers about what this principle is: since good is what primarily falls under the apprehension of the practical reason, the supreme principle of moral action must have the good as its central idea, and therefore the supreme principle is that good is to be done and evil avoided. [64]

Natural Rights History

An analogy of how God is viewed in the terms of the law that is our heritage. We are endowed by our Creator with unalienable rights and this has always been looked upon as the greatest law and as natural law.

Outlined in law, God is simply identified as a supreme being of good. Key documents that declare the roots of our liberties recognize God as supreme with rules that have been long established over numerous centuries.

This critical edition is the first ever publication of Hale's Of the Law of Nature, which previously existed only in manuscript form. After discussing and defining the law in general, Hale examines the natural law in particular, its discovery and divine origin, and how it relates to both biblical and human laws. Hale's treatise, which was likely written as part of his personal meditations, and was circulated among English lawyers after his death, reveals not only the close relationship between law and theology in his thought, but also the importance of natural law to early modern legal thought.