Natural rights and legal rights

Natural rights (also called human rights) are universal rights that are seen as inherent in the nature of people, and not contingent on human actions or beliefs. One theory of natural rights was developed from the theory of natural law during the Enlightenment in opposition to the divine right of kings, and provided a moral justification for liberalism.

The concept of a natural right can be contrasted with the concept of a legal right: A natural right is one that is claimed to exist even when it is not enforced by the government or society as a whole, while a legal right is a right specifically created by the government or society, for the benefit of its members. The question of which rights are natural and which are legal is an important one in philosophy and politics. Critics of the concept of natural rights argue that all rights are legal rights.

The idea of human rights descended from that of natural rights; some recognize no difference between the two and regard both as labels for the same thing while others choose to keep the terms seperate to eliminate association with some features traditionally associated with natural rights.

Conceptions of natural rights

Many philosophers and statesmen have designed lists of what they believe to be natural rights; almost all include the right to life and liberty, as these are considered to be the two highest priorities. H.L.A. Hart has argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. 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. Some thinkers like John Locke emphasized "property" as primary. However, despite Locke’s influential defense of the right of revolution, Thomas Jefferson substituted "pursuit of happiness" for property in the Declaration of Independence. The Declaration of Independence also based natural or "unalienable rights" on human nature, arguing that it was "self-evident" that human beings by their very nature seek life, liberty, and happiness. This assumed, like Hobbes, Locke and Jean–Jacques Rousseau - also a major social contract thinker - the right of human beings to follow their nature as a natural right antedating and not bestowed by government.

The first philosopher who fully made natural rights the source of his moral and political philosophy was Thomas Hobbes (1588-1679). Hobbes argued that it is human nature to love one's self best and seek one's own good (this is a view known as psychological egoism). Since it is unavoidable ("necessity of nature") for human beings to follow their nature, it becomes a right to do so. According to Hobbes, to deny this right is to deny that we have a right to be human, which would be absurd, just as it would be absurd to demand that carnivores reject meat or that fish stop swimming. Therefore, we have no obligations by birth or nature, but only unlimited rights - leading to a situation known as the "war of all against all", in which human beings have to kill, steal and enslave others in order to stay alive. Hobbes reasoned that this world of chaos created by unlimited rights was highly undesirable, causing human life to be "solitary, poor, nasty, brutish, and short". As such, humans have chosen to give up (some of) their natural rights and created 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. This marked an important departure from medieval natural law theories which gave priority to obligations over rights. However, some thinkers such as Leo Strauss, maintained that Hobbes kept the primacy of natural law or moral obligation over natural rights, and thus did not fully break with medieval thought.

John Locke (1632-1704), was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke was a major social contract thinker, who argued that all legitimate governments must be based on consent.

Criticism

Critics have argued that natural rights do not exist (in the sense that all rights are invented by human beings and are therefore by definition "artificial"). The attempt to derive rights from "natural law" or "human nature" is an example of the is-ought problem in philosophy, and, as noted above, different philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to separate truly 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. For instance, Jonathan Wallace has asserted that there is no basis on which to claim that some rights are natural, and he argued that Hobbes' account of natural rights confuses right with ability (human beings have the ability to seek only their own good and follow their nature in the same way as animals, but this does not imply that they have a right to do so).[1] Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:

We are all at a table together, deciding which rules to adopt, free from any vague constraints, half-remembered myths, anonymous patriarchal texts and murky concepts of nature. If I propose something you do not like, tell me why it is not practical, or harms somebody, or is counter to some other useful rule; but don't tell me it offends the universe.

Jeremy Bentham, a utilitarian philosopher, famously stated:

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense -- nonsense upon stilts.

See also

• Deontological ethics
• Ethic of reciprocity
• Human rights
• Moral universalism
• Social contract
• Universality
• Natural Law

Sources

• Hart, H. L. A. "Are there any natural rights?" (Philosophical Review 64, 1955)
• Strauss, Leo. Natural Right And History, University of Chicago Press, 1965