Are there any natural rights? "A man may choose whether he will become a civil servant or a schoolmaster, a conservative or a socialist, but he cannot choose whether he will be a man or a dog."[1]
Are there any natural rights?
"A man may choose whether he will become a civil servant or a schoolmaster, a conservative or a socialist, but he cannot choose whether he will be a man or a dog."1
Natural rights are perceived as the inherent and original rights of human nature, which equally belong to all men without exception, and which are possessed solely because of their human condition. They are held to stem from a concept of natural law, whatever definition may be attributed to the term. The theory of natural law and natural rights of man is, however, an obscure one. It seems a strange law, which is unwritten, has never been enacted, may even be observed without penalty, and imposes peculiar rights which are entitled prior to all specific claims within an organised society. It may be just an example of 'social mythology', but such an idea is still intriguing. For, to disregard it completely is to deny all its evident psychological, political and legal effects, and to adopt it fully is to be blind to man's own imperfections. "That men are entitled to make certain claims by virtue simply of their common humanity has been equally passionately defended and vehemently denied."2
H. L. A. Hart once asserted that "if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free."3 And the proposition that all men have natural rights or rights as human beings is found explicitly in the theories of Thomas Aquinas and John Locke, implicitly in the moral and political philosophy of Immanuel Kant, and at least problematic in the writings of Thomas Hobbes. At the level of practise, it is expressed not only in the rhetoric but in the constitutional innovations of the American and French Revolutions, stating that "the end in view of every political association is the preservation of the natural and imprescriptable rights of man."4 When the ordinary citizen acts as a living and protesting individual, challenging the dictates of existing governments when and if he finds them oppressive, he is appealing to the very same values of freedom and equality among men, and in which social differences simply vanish, leaving the solitary individual with his essential human nature.
Both conservative and socialist thinkers, however, have attempted to deny such claims, and instead assert the interests of the community as more important than those of the individual. As Karl Marx would put it, "none of the so-called rights of man goes beyond egoistic man,... an individual withdrawn behind his private interests and whims and separated from the community."5 The same idea and the same controversies have dominated political debates in the twentieth century regarding governmental practises. The importance of a person's rights to individuality and freedom from interference is central to the moral and political theories of such subjectivist thinkers as J. L. Mackie and David Hume. However, by no one has the theory of natural rights ever been properly justified or denied, or at least not as it has been defined and debated.
Questions are then posed as to, why people should suppose that they have natural rights independent of the laws and governments of any existing society? If, for example, the laws of a society condemn a human being to slavery, how would his claim (if any) that freedom is a natural right of man be justified? And, if it could be said that there is an essential aspect of human nature which determines man's free status, a natural law which applies to all men, something in man which governs the relations of human beings independently of the laws of all particular societies, how can such natural facts be discovered if they have never been confirmed by observation? The answer may be contained in the proposition that man uniquely possesses the powers of reason. Thus, Roman lawyers, who were not the first to discuss natural law or natural rights, but the first to posit the theory defensibly, conceived of it as "an ideal or standard, not yet completely exemplified in any existing legal code, but also as a standard fixed by nature to be discovered and gradually applied by men."6 It is a standard not created or conferred by man's voluntary action, but by nature, or God, and which all men have if they are capable of rational choice.
Thomas Aquinas, a philosophical theologian, in his elaborate study of justice, defined natural law as "participatio legis aeternae in rationali creatura: the participation of the Eternal Law in rational creatures",7 and natural rights (or its antecedent in the European culture, viz. 'jus') as primarily "the just thing itself"8, or, to use Rawls' words, that which is 'fair' for "fundamental to justice, is the concept of fairness."9 The Divine natural values and principles that were to conduct human behaviour would be grasped by the application of man's ordinary power of understanding, for "amongst our natural inclinations is the inclination ...
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Thomas Aquinas, a philosophical theologian, in his elaborate study of justice, defined natural law as "participatio legis aeternae in rationali creatura: the participation of the Eternal Law in rational creatures",7 and natural rights (or its antecedent in the European culture, viz. 'jus') as primarily "the just thing itself"8, or, to use Rawls' words, that which is 'fair' for "fundamental to justice, is the concept of fairness."9 The Divine natural values and principles that were to conduct human behaviour would be grasped by the application of man's ordinary power of understanding, for "amongst our natural inclinations is the inclination to act secundum rationem, i.e. reasonably."10 And, we are to assume here, man's capacity for reason and his propensity to act according to its mandates as what determines 'the good' and what compels him to desire good over evil, right instead of wrong.
Distinct from animals and the rest of nature, human beings are able to provide for themselves, and so man is said to be not only subject to God's providence, but actually to participate in it. "Every activity of reason and of will derives ... from principles naturally known... and all desire... derives from natural desire for an end beyond which there is no further end"; "a completeness of flourishing."11 And such a "light of natural reason, whereby we discern what is good and what is bad" (which is what natural law and natural rights concern), "is simply the impress in us of the divine light."12 Hence, the standard of natural law and natural rights, "a standard by which to judge the imperfections of what exists"13 is said to be set by reason and to be known because men have reason. "There is, in fact", said Cicero, "a true law - namely right reason - which is in accordance with nature, applies to all men and is unchangeable and eternal."14
In the seventeenth century, the doctrines of natural law and natural rights were directly connected with the Social Contract and minimalist theories of the state. Because he is rational, said Locke, man is subject to the law of nature and enjoys natural rights even before the establishment of society. In the so-called 'state of nature', men have individual rights - to life, freedom and property - which are considered the foundation of all his civic rights.
In the 'state of nature', men have the right to freedom from interference by others and in turn a correlative duty to refrain from interfering in the life of others. However, at the same time, "all men may be restrained from invading others' rights, and from doing hurt to one another", the execution of the law of nature and preservation of individual natural rights is "put into every man's hands, whereby everyone has a right to punish the transgressors of that law to such degree, as may hinder its violation."15 Men have an obligation to preserve to the best of their ability the life, liberty and property to which others also have natural rights, as long as "his own preservation comes not in competition."16
In moving from the 'state of nature' to that of civil society, man carries with him the natural rights and some of the authority he had in that state of autonomy. There are certain powers, however, that man gives up in subjecting himself to civil authority. He gives up that power he had to do whatever he sees fit for the preservation of his life, since this power is "to be regulated by the laws made by society". Man therefore signs a social contract, surrendering "the power of punishing", which is "to be so far disposed of by the legislative, as the good of society shall require." But he never surrenders his rights, and thus government "is obliged to secure everyone's property [liberty, life and possessions], by providing against those... defects... that made the state of nature so unsafe and uneasy."17 Man did not enter society to become worse than he was before, but only to have his natural rights better secured.
When social contract theorists talk of the rights which men enjoyed in the 'state of nature', they are in effect saying what men ought to enjoy in any society, that all men ought to be free, independent of their social condition. Words like freedom and equality represented for the advocates of natural rights what they considered to be the fundamental moral and social values, which should be realised in any society of rational citizens. These values, and hence natural rights, in the social contract, are the basis for rights embedded in the clauses of constitutions. The fundamental purpose of law is therefore considered to be the protection of individual rights. In reality, however, positive laws of society are somewhat imperfect. Until a law was enacted in order to abolish slavery, slaves ought to have been free but clearly were not. Even though man seemed to be entitled by nature to natural rights, which might be denied to him by the positive laws of existing societies, the natural law and natural rights were impotent.
Then perhaps, some argue, there are no real natural rights but moral rights to which all individuals should be entitled and moral obligations to which all individuals should abide, that "human and natural rights are the fundamental general moral rights."18 Kant claims that to treat another human being as a person, as having intrinsic value, is to treat him in accordance with the moral law applicable to all rational beings on account of their having reason. But studies of morality are said to include other aspects of the human essence rather than simply reason.
As human beings, all individuals are capable of reason, but it clearly does not follow that all decisions are based on reason alone. This is not to say that choices are made at random, i.e. with no previous calculations, but that the human body is also composed of feelings, 'sentiments', and, according to Hume, "reason and sentiment concur in almost all moral determinations and conclusions. The final sentence, it is probable, which pronounces characters and actions amiable or odious, praise-worthy or blameable; that which stamps on them the mark of honour or infamy, approbation or censure; that which renders morality and active principle and constitutes virtue or happiness, and vice our misery: it is probable, I say, that this final sentence depends on some internal sense or feeling, which nature has made universal in the whole species."19 The ultimate ends of human actions can never be accounted for by reason, but only by some desire for which no reason can be given. Reason may discover truths and show things as they really are, but it is cool and disengaged. Whereas sentiments, rooted in the feelings of pain and pleasure, and man's inclination to avoid or pursue them, have the power to motivate. "Reason... alone is not sufficient to produce moral blame or approbation..." Sentiment is requisite "in order to give a preference to the useful above the pernicious tendencies."20 It follows then as Mackie points out that "morality is not to be discovered but to be made."
If morality is not to be discovered but to be made, one may say that there are no real natural rights as described above by Aquinas' and Locke's theories. Natural events cannot tell us what we ought to do until we have made certain decisions. Whether moved by reason or sentiment, or both, standards of behaviour are determined by human choice, not set by nature independently of men.
And no man can have any 'valid' rights in the absence of a society. That is not to argue in favour of the communitarian point of view that there can be no individual rights but it is to assert that human beings need one another in order to fully exercise all their rights. One may say that someone has the right to life only because someone else might have the power to kill him. For, if there were no else in the universe, there would be no need for protection, there would be no need for rights. Human beings can only vindicate their rights in relation to others, for human beings can only live in relation to others.
It can thus be concluded that (human) rights are the product of social conditions, of man's general desire for harmonious relations and his instinct of self-preservation in a community of different and often conflicting interests. Hence, neither can there be no natural rights, as understood to be ordained by God, or, as many libertarians would defend, to be discovered by reason. Rather, men's own imperfections have made individual rights a natural quality of human beings. If they are thought to originate outside of human nature and interactions, natural rights are defiable; but nonetheless, in day-to-day life, we simply assume that we have these human rights. It may be a product of human imagination, and it probably is but we like to think that they are real.
More recently, other rights have been included in the primarily small list of fundamental values for human existence, which give rise to consequential rights. The United Nations Declaration on Human Rights, proclaimed by the General Assembly in December 1948, has been taken as a model not only for the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966) but also for the European Convention for Protection of Human Rights and Fundamental Freedoms (1952), itself the model for the very many Bills of Rights entrenched in the constitutions of countries becoming independent in the modern world.
Bibliography
- Barry, Norman "An Introduction to Modern Political Theory", Macmillan Press Ltd, UK, Fourth Edition, 2000
- Brown, W. L. "An Essay on the Natural Equality of Men, On the Rights that Result from it, and on the Duties which it Imposes", Routledge/ Thoemmes Press, UK, 1994
- Finnis, John "Natural Law and Natural Rights", Oxford University Press, USA, 1980
- Hart, H. L. A. "Are There Any Natural Rights?", in Goodin, R. & Pettit, P. "Contemporary Political Philosophy, An Anthology", Blackwell Publishers Ltd, UK, 1997
- Leyden, W. von "John Locke, Essays on The Law of Nature", Oxford University Press, UK, 1954
- MacDonald, Margaret "Natural Rights", in Waldron, Jeremy "Theories of Rights", Oxford University Press, USA, 1984
- Mackie, John "Ethics: Inventing Right and Wrong", Penguin, UK, 1977
- Marx, Karl "On the Jewish Question", in McLellan, David "Karl Marx: Selected Writings", UK, 1977
- Melden, A. I. "Rights in Moral Lives, A Historical-Philosophical Essay", University of California Press, USA, 1988
- Rawls, John "Justice as Fairness", in Goodin, R. & Pettit, P. "Contemporary Political Philosophy, An Anthology", Blackwell Publishers Ltd, UK, 1997
- Robertson, David "The Penguin Dictionary of Politics", Penguin, UK, Second Edition, 1993
- Selby-Bigge, L. A. "Hume's Enquiries Concerning the Human Understanding and Concerning the Principles of Morals", Oxford University Press, UK, Second Edition, 1902
- Waldron, Jeremy "Theories of Rights", Oxford University Press, USA, 1984
IR3014 The Language of Politics
Ana Martiningui
Dr. G. Slomp
02/ 12/ 00
Are there any natural rights?
"A man may choose whether he will become a civil servant or a schoolmaster, a conservative or a socialist, but he cannot choose whether he will be a man or a dog."
(MacDonald, Margaret "Natural Rights")
MacDonald, Margaret "Natural Rights", in Waldron, Jeremy "Theories of Rights", Oxford University Press, USA, 1984, p.30
2 Ibid., p.22
3 Hart, H. L. A. "Are There Any Natural Rights?", in Goodin, R. & Pettit, P. "Contemporary Political Philosophy, An Anthology", Blackwell Publishers Ltd, UK, 1997, p.320
4 Declaration of the Rights of Man and the Citizen, Article II, French National Assembly, 27 August 1789
5 Marx, Karl "On the Jewish Question", in McLellan, David "Karl Marx: Selected Writings", UK, 1977, p.54
6 op. cit., MacDonald, Margaret "Natural Rights", 1984, p.24
7 Finnis, John "Natural Law and Natural Rights", Oxford University Press, USA, 1980, p.398
8 Ibid., p.206
9 Rawls, John "Justice as Fairness", in Goodin, R. & Pettit, P. "Contemporary Political Philosophy, An Anthology", Blackwell Publishers Ltd, UK, 1997, p.192
0 op. cit., Finnis, John "Natural Law and Natural Rights", 1980, p.401
1 Ibid., p.401
2 Ibid., p.402
3 op. cit., MacDonald, Margaret "Natural Rights", 1984, p.26
4 Ibid., p.26
5 Melden, A. I. "Rights in Moral Lives, A Historical-Philosophical Essay", University of California Press, USA, 1998, p.8
6 Ibid., p.8
7 Ibid., p.9
8 op. cit., Finnis, John "Natural Law and Natural Rights", 1980, p.198
9 Selby-Bigge, L. A. "Hume's Enquiries Concerning the Human Understanding and Concerning the Principles of Morals", Oxford University Press, UK, Second Edition, 1902, p.172/ 173
20 Ibid., p.286
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