Natural Rights
By Tibor Machan - July 30, 2014

In the history of political thought natural rights theory is most closely associated with John Locke, although as Brian Tierney has shown, the idea had been formed much earlier and some, for example Fred D. Miller, Jr., even hold that Aristotle was already considering certain issues in terms of them. The crucial function of the qualifier "natural" is that these rights, however understood, are supposed to derive from an understanding of human nature. Given that human beings are basically free and independent, argued Locke, they all (in virtue of their human nature) possess the right to their person and estate within human communities – what we would now call to life and property. As he put it, "there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection…."

He adds: "The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's."

A right then, in this context, is a sphere of personal authority or jurisdiction, wherein someone is supposed to be sovereign or self-governing. Accordingly, having such rights by virtue of their human nature would imply that no one may violate them with impunity. The American founders succinctly expressed this idea in the Declaration of Independence by noting that everyone is created equal in so far as everyone – "all men" – have the right to, among other things, life, liberty, and the pursuit of happiness. The inclusion of a Bill of Rights in the U. S. Constitution – and subsequently, in terms of "human rights," in numerous other political and legal documents across the world – shows the strong influence of Locke's theory, even though in time the type of rights ascribed to people changed somewhat from those Locke believed everyone possesses. (See "negative v. positive rights.")

Locke's idea was that because human beings are distinctive living beings by virtue of their capacity for free choice and independent conduct – they can govern themselves and need to do so properly, as guided by reason – everyone in a community needs what another, contemporary natural rights theorist, the late Robert Nozick, called, "moral space." This is a sphere or region of personal jurisdiction, one which others may only enter with the rights possessor's permission.

The idea of these natural rights came to dominance in political theory along with the idea of individualism, the notion that it is not the society, family, tribe, race or nation that needs to be guarded most by legal institutions but individual human beings. Given that these human beings are subject to moral evaluation – their conduct can be deemed ethically or morally right or wrong – such moral evaluation would be distorted if other people had the legitimate power over them, interfering with how they conduct themselves. So even in the course of political affairs, every individual must give his or her consent so that others will be properly authorized to govern them. (Again, the Declaration of Independence has significant wording indicating this implication of natural rights theory.)

As it is now explained, John Locke understood rights as involving mostly that they are prohibitions on other people interfering with what someone is doing. Both oneself and one's property—anything from nature with which one has mixed one's labor, according to Locke – may only be treated by the person, not others, unless these others gained one's consent or agreement. In a complicated society the legal system – first the basic law or constitution and following it all the great variety of laws – must accord with the basic rights everyone possesses. Although matters can become very complex, the idea is that if these basic, natural rights are something everyone does in fact possess, then these implications can be worked out by legislatures and the courts and a society developed in which all citizens will be treated as free and independent, as their nature requires.

Natural rights theory was both very influential as well as widely criticized, especially by those who believed that society's laws must serve the common or general good and not focus on protecting individuals and their liberty. Among the critics one who is most remembered is the English Jurist and philosopher, Jeremy Bentham, who said, famously, "Rights is the child of law; from real law come real rights; but from imaginary laws, from 'law of nature,' come imaginary rights…. Natural rights is simple nonsense; natural and imprescriptible rights (an American phrase) … [is] rhetorical nonsense, nonsense upon stilts." Other prominent political thinkers agreed. For example, David Hume believed that both natural law and natural rights are mythical, "metaphysical" fictions.

More importantly, there were those, such as Thomas H. Green and later many defenders of the welfare state, who believe that Locke failed to make room for positive rights, meaning rights to provisions from others, especially important to those who were not favored by circumstances, who were poor and needy. For example, while the rights Locke spelled out, to life and property, would secure for the reasonably well off a sphere of liberty, others, such as members of the working class, would need special rights to being provided with care and consideration – for example, a minimum wage, health care, education – so as to enjoy a fruitful, flourishing life.

In America two influential voices, Josiah Royce's and John Dewey's, also found fault with the individualist natural rights stance that came from John Locke and found such favor with the American founders. Royce's position was the more radical challenge because of its emphasis of the greater importance of the "whole," which could be interpreted as a kind of anti-individualism or even collectivism whereby individuals must be loyal to a greater entity, humanity or society, instead of to their best prospects in their lives. Dewey, in turn, believed that individualism in this tradition is a kind of ideology or even dogma, disguising certain motives as universal truths. By "ideology" Dewey had in mind a notion that arises from Hegel and Marx, namely, a kind of rationalization for certain special interests, so in a sense Dewey is questioning the authenticity of Locke and others, just as Marx did. This is done, often unintentionally, by the thinker. Yet it serves a purpose that is quite different from what it appears to serve, namely, the general or common good or unacknowledged interests.

Defenders of the Lockean idea responded to these kinds of criticisms by noting, first of all, that any talk of positive rights amounted to undermining the rights to liberty and property and that if some in a society required special care, this must come from voluntary help, not labor that is conscripted and property that's confiscated. It is especially Locke's and his followers' support of an unqualified, basic right to private property that divided the two factions, those supporting negative rights and those favoring positive rights. And the dispute has surfaced most prominently within the context of political economy and those societies that have found inspiration in the American experience. Should they follow the stricter Lockean idea that can be used to support a substantially, even completely laissez-faire capitalist political economic order or should they follow a modified version we call today the welfare state or, in Europe, "the Third Way" (one between capitalism and socialism)?

There is no doubt that the natural rights tradition of political thought rejects the idea that some greater whole such as humanity or society is of superior value to the value of the individuals who make up that whole. Society is not some entity, nor is humanity. They are concepts usefully deployed in certain circumstances but when they are fully unpacked, what emerges is that they refer in reality ultimately to large groups of human individuals. The individual, the natural rights defenders will claim, is still the fundamental being and value in political theory.

As to the charge of "ideology" when it comes not only to natural rights theorizing but theorizing of any type, it has the problem of self-referential inconsistency – those making the claim that some viewpoint is no more than ideology (an expression of some hidden or not so hidden special agenda of, say, the rich or the powerful) can also be indicted for laying out a position that advances some special interest – e.g., of idealists, revolutionaries, the power hungry, et al. In more general terms, calling some view an ideology fails to come to terms with its arguments and indulges in a kind of psychologizing or even character assassination. If one finds fault with natural rights theory, why not compare it with other theories and consider which is the more successful for purposes of guiding human community life. Natural rights theorist tend to hold that their theory rests on a realistic conception of human nature, that human beings are indeed primarily individuals, which means mainly that they must use their own minds to address problems in the world, including the problem of how best to relate to one another.

Although during the 20th century the pure capitalist system fared badly, because many historians, rightly or wrongly, have linked the great depression and other economic ills in society to it, by the end of the 20th and beginning of the 21st centuries capitalism, with its idea of strict protection of private property rights (privatization) and freedom of contract, resurfaced because of socialism's demise in the Soviet bloc and the faltering economic performance of some Western European welfare states.

The Lockean tradition has continued to enjoy some strong support among prominent economists, Ludwig von Mises, F. A. Hayek, Milton Friedman, and some political philosophers, the late Robert Nozick, Ayn Rand, Anthony Flew, John Hospers, et al. But in practical, public policies issues the welfare state supported by a far larger number of thinkers, such as the late John Rawls and most of his followers (e.g., James P. Sterba) – has had greater presence throughout Western liberal countries.

More recently the Lockean idea has come under criticism and out and out hostility from those who have criticized Western political and legal institutions for failing to promote traditional Christian, Muslim or related religious virtues, for their so called licentiousness and official indifference to abuses of the right to liberty (for example, gambling, divorce, homosexuality, drug abuse, hedonism, etc.). With the stress on protecting the individual's rights to life, liberty, property, pursuit of happiness, privacy and so forth, Western countries supposedly encourage atheism, infidelity, and vice and governments look the other way when people become corrupt and violate God's laws.

This line of criticism of Western liberalism is resisted by the more or less Lockean liberals among contemporary political thinkers on such grounds that vice and virtue have no meaning in a society in which there is no individual liberty – only free men and women have the chance at morally significant conduct, virtuous or not. If one denies people their Lockean rights, they are not moral agents but merely followers of the commands of others, puppets, something that deprives them of the chance to do either what is morally right or wrong conduct.

It is difficult to imagine a future in which the natural rights tradition will have no influence, at least as a standard of political and legal institutions serving as a source of serious debate and criticism of various societies. The era when legal systems, governments, law and order amounted to a fully top-down regime, with the population kept silent and inert by powerful monarchs, dictators, families, and even parties seems to be largely past, although there is, of course, considerable evidence of them in many parts of the world. But those parts are seriously threatened as viable human institutional arrangements by developments in thinking and institutions that had been clearly influenced by the Lockean natural rights position. Globalization, women's equality, the abolition of slavery in all of its forms, the limitation on government power and similar trends are among these and it is difficult to imagine them no continuing to make an impact across the world.

References and Further Reading

Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by J. H. Burns and H. L. A. Hart (London: Athlone Press, 1970).

Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).

Locke, John, The Second Treatise of Government (NY: Barnes & Noble, 1966).

Machan, Tibor R., Individuals and Their Rights (Chicago: Open Court, 1989).

Miller, Fred D., Jr., Nature, Justice, and Natural Rights in Aristole's Politics (Oxford: Clarendon Press, 1995).

Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974).

Rasmussen/Den Uyl Doug, Norms of Liberty (University Park, PA: Pennsylvania University Press, 2005).

Shue, Henry, Basic Rights: Subsistance, Affluence, and U. S. Foreign Policy (Princeton: Princeton University Press, 1980).

Tierney, Brian, The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law (Atlanta: Scholars Press, 1997).

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