In response to an essay in which I discuss the difference between Amartya Sen's and the late Peter Bauer's recommendation for how countries can achieve economic development, one in which I touch on the topic of natural rights, someone sent the magazine where my essay had appeared the following communication. I believe that it will serve as a good beginning for some further considerations of natural rights.
The author of the letter, Stephen E. Silver (to Free Inquiry Magazine [August-September 2010]), wrote as follows:
I think the simple answer to Tibor Machan's question ("Sen v. Bauer: On What Do Rights Stand?" Fl, June/July 2010) is that human rights do not stand on anything. These rights, when first promulgated several hundred years ago, were called "natural rights" or the "Rights of Man." They were believed to be God-given; if there was no God, then there was no basis for these rights.
As deism gradually gave way to outright secularism, so "natural rights" (based on "natural religion") gave way to "human rights." But if they did not emanate from God, what was their origin?
Machan would like us to believe that such rights are based on an objective knowledge of human nature. There is, of course no such knowledge. Different cultures have different concepts of human living. There are many societies that, as Captain Cook learned, have little or no concept of private property or in which the personal ownership of land is inconceivable. Even within the same culture, there are many different concepts of human nature – should we accept that of Hobbes, Locke, Rousseau, or Nietzsche?
Additionally, he posits that such rights rest in the human capacity to reason about reality. In fact, as anyone watching Fox News will confirm, the human capacity to reason about reality is extremely limited and cannot be used to establish that we have or deserve to have human rights. This is a complete non sequitor.
In either case, Machan believes that certain rights actually exist. He calls them "pre-legal principles," but this is simply a euphemism for "natural rights," i.e., natural rights without God but which are nevertheless inviolable and not open to discussion.
There is absolutely no evidence that such abstract rights or pre-legal principles exist. And certainly, in practice, these so called inalienable rights may be abrogated or withdrawn. If we have a natural right to life, then why is there a death penalty? If there is a right to liberty, why is there incarceration? Our "freedom of speech" is limited by laws against libel, slander, and "hate speech." Obviously these "inalienable" rights are, in fact, provisional.
Perhaps we should treat others as if they had human rights, and we should ourselves be treated as if we had human rights, but these rights do not really exist. We have made them up for ourselves. We have put them to good use, but we should admit that they are simply a figment of society's imagination. Indeed, they may represent our best aspirations.
Let me start with the first point Mr. Silver raises, namely, that human rights used to be dubbed natural rights and were as such thought to be God-given. Yet, as the term "natural" clearly suggests, these rights were believed – for example by John Locke – to be based on an understanding of human nature. Human beings may have been regarded by some natural rights theorists as God-created but their basic rights were alleged to be derivable from their nature as free and independent moral agents. That is how John Locke saw it, rightly or wrongly. So what matters here is whether there are human beings as a class of living entities in the world and whether they have attributes that imply that they have certain rights once they find themselves in human communities. Locke and the American Founders held that they do. God had nothing much to do with this part of the theory.
Next, the reason for the switch to human rights from natural ones was not due to any theological considerations either but because the idea of "the nature of X" fell into disrepute at the hands of skeptics, like David Hume, who disputed that things had a firm, stable nature. Yet this is still a very open issue in philosophy, so it is widely argued that human nature exists and that certain rights may be derived from it. Even if widely disputed, it could well be right, which is what really matters.
As to whether there are many different conceptions of human nature throughout history and the globe, that's irrelevant. There are many different conceptions of justice, fairness, equality, virtue, vice, etc., but that's due to the simple fact that people don't see things eye to eye. It does not imply for a moment that no human nature can be identified, only that they dispute about the matter just as they do about most other serious human concerns (even in the natural sciences). In my view, which is by no means idiosyncratic, human nature exists – it consist of those aspects of what human beings are that they share, in virtue of which we are classified as human beings rather than, say, bears or zebras (which also have a nature).
Also, the fact that a principle can be violated doesn't disprove its existence – woman have the right to their sexual liberty yet rapists violate this principles all the time. Moral and political principles are of that sort.
Another point on which the letter's author is mistaken is the defining capacity of human beings to reason. They are rational animals, as most thinkers have found since ancient times. This means they have the capacity to be rational, to reason carefully about the world. It does not mean that they do so all the time – on Fox TV or MS NBC, for that matter – or that all of them choose to do so.
The idea of natural rights is pretty well grounded – I wrote about this in my Individuals and Their Rights (1989) – and the existence of disagreement does not undermine it. There are thousands of racists who disagree about the moral equality of blacks and whites and they are entirely irrelevant when it comes to the truth of the issue.
As a side issue, this author's case against natural rights, is exactly the same as that presented by the philosopher Kai Nielsen in his paper from 1965, "Skepticism and Human Rights," in The Monist. The debate goes on but that doesn't mean there is no truth about the matter. Today it is the president's favorite attorney, Cass Sunstein, who voices the skepticism about natural rights, to morrow it will be someone else. That's why eternal vigilance is needed.