natural rights

rights which persons possess by nature: that is, without the intervention of agreement, or in the absence of political and legal institutions. Natural rights are therefore attributable to individuals without distinction of time or place. A contrast may be drawn with positive rights: that is, those rights conferred or guaranteed by a particular legal system. Natural rights have been derided as nonsensical (by Bentham) on the ground that it is impossible to speak of rights without enforceable duties, and enforceability exists only when a potentially coercive legal system exists. Furthermore, there has been no unanimity even amongst those who recognize natural rights as to their content. Natural rights have been seen as gifts of God, as correlative to duties imposed on man by God, and as concomitants of human nature or reason. We might distinguish: (1) natural rights; (2) moral rights; and (3) legal rights. The third are those recognized by positive law. The first are those asserted to be universal and thus guides to the proper content of any legal system. The second are those which, it is claimed, should be recognized by particular legal systems or which, while not universal, should be recognized under existing conditions. The classification of rights will depend in part on understandings of their purpose and of their consequences.

— Andrew Reeve

Natural rights, according to American tradition, are those rights granted to human-kind by their Creator, or as Jefferson put it in the Declaration of Independence—essentially borrowing from John Locke's Second Treatise on Government (1690)—the rights accorded by "Nature and Nature's God." In the Declaration, these are described as "unalienable" rights, and include the recognition that "all men are created equal" and that all have rights to "Life, Liberty, and the Pursuit of Happiness."

Locke himself formulated man's basic natural right as "to preserve his property, that is, his life, liberty and estate," and both Jefferson's and Locke's ideas found echoes in some of the early American state constitutions. The Pennsylvania Constitution of 1776 was typical. It declared "That all men are born equally free and independent, and have certain natural, inherent and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety." The Pennsylvania document added to this enumeration of its citizens' rights, among others, the "natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding," and it made clear that "the community hath an indubitable, unalienable and indefeasible right to reform, alter or abolish government, in such manner as shall be by that community judged most conducive to the public weal." Natural rights, then, protect particular individual freedoms, but also give the community the right to self-government, so long as that government continues to protect and preserve the basic natural rights of individuals. When government fails to protect those rights, revolution—as Locke and the Declaration affirmed—is justified.

While natural rights are, in theory at least, the gift of a benevolent creator, American documents of fundamental law, following the English example, have tended to enumerate these basic protections against the government in documents called "bills of rights." The most important consists of the first ten amendments to the U.S. Constitution, passed in 1791. These include, among others, rights of freedom of religion, freedom of speech, freedom of the press, freedom from unreasonable searches and seizures, rights to trial by jury, and the guarantee that no one will be deprived of life, liberty, or property without due process of law.

Over the course of American history there has been a great deal of debate over whether the broad generalizations regarding natural rights in the Declaration of Independence ought to be regarded as incorporated within the more specific guarantees of the U.S. Constitution, or even regarded as "supra-Constitutional principles" that are nevertheless binding on all American governments. The suggestion that there are such principles can be found in some early American federal and state cases. For example, in Calder v. Bull (1798) U.S. Supreme Court Justice Samuel Chase declares that whether or not there are express prohibitions against it in a Constitution, no "republican" government can make a person judge and party in his own case, pass a law that makes criminal an act legal when committed, or take one person's property without compensation and grant it to another. Similarly, in Currie's Administrators v. The Mutual Assurance Society (1809), Virginia supreme court judge Spencer Roane observed that "all free governments" were instituted for the protection of "our rights of person and property," and that the powers of legislatures are bounded by "the principles and provisions of the constitution and bill of rights, and by those great rights and principles, for the preservation of which all just governments are founded."

The sentiments in the Declaration that all men are created equal led the abolitionists, in the antebellum years, to resist the American law of slavery and to argue, based on natural rights, that the provisions in the Constitution that supported slavery were null and void. This view was rejected by Chief Justice Roger Taney in the Dred Scott Case of 1857, in which he essentially ruled that the property rights of the slaveholders trumped any words of the Declaration. Taney's view was repudiated by many speeches of Abraham Lincoln, most notably in his Gettysburg Address (1863), where he reaffirmed the idea that the United States had been "conceived in liberty, and dedicated to the proposition that all men are created equal" and that, further, the Civil War was being fought to reaffirm those principles and to preserve "government of the people, for the people, by the people." The Thirteenth Amendment's abolition of slavery and the Fourteenth Amendment's guarantee that state governments may not deprive anyone of the "equal protection of the laws" have come to be viewed as vital protections of the natural rights of Americans.

Thus, in the 1950s and 1960s the Supreme Court under Earl Warren, chiefly employing the Fourteenth Amendment, rendered a series of decisions, based on simple principles of equality and individual rights, that were viewed by their champions as essential implementations of justice or natural rights. These included prohibitions on racial segregation in schools and public services, prohibitions on mandatory school prayer and Bible reading, guarantees that state legislatures had to be organized around the principle of "one man, one vote," and restrictions on police practices that encroached on the rights of the accused. None of these decisions was dictated by the text of the Constitution, or by the historical understanding of its provisions, but all had in common an expansive and egalitarian notion of individual rights quite consistent with Lincoln's address, if not Jefferson's Declaration.

In the late twentieth and early twenty-first century, jurisprudential approaches based on natural rights were falling out of favor at the federal level because they gave judges too much discretion. Thus, Clarence Thomas's nomination to the Supreme Court foundered briefly because he had given speeches indicating a commitment to the implementation of the kind of "natural law" thinking in the Declaration. While the Supreme Court seemed to be shying away from the expansive implementation of individual natural rights, however, it was becoming increasingly common for state court judges to reject civil justice reform efforts of state legislatures on the grounds that they interfered with state constitutional guarantees of natural rights such as the right to trial by jury or to enjoy the benefits of the separation of governmental powers. Finally, the revolutionary American ideas of natural rights were being metamorphosed or superseded in international law by conceptions of human rights. These were often invoked by insurgents who sought to throw off oppressive governments and by countries, including the United States, that sought, often in concert, to intervene in other sovereign nations' affairs where human rights had been infringed.

Bibliography

Gerber, Scott Douglas. To Secure These Rights: The Declaration of Independence and Constitutional Interpretation. New York: New York University Press, 1995.

Jaffa, Harry V. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War. Lanham, Md.: Rowman and Little-field, 2000.

Perry, Michael J. The Constitution, the Courts, and Human Rights: An Inquiry into the Legitimacy of Constitutional Policymaking by the Judiciary. New Haven, Conn.: Yale University Press, 1982.

Presser, Stephen B. "Liberty under Law under Siege" ORBIS: A Journal of World Affairs 45 (2001): 357–369.

———, and Jamil S. Zainaldin. Law and Jurisprudence in American History. 4th ed. St. Paul, Minn.: West Group, 2000

The idea of natural rights is inseparable from the doctrine that all human beings, regardless of extrinsic differences in circumstance (nationality, class, religion) or physical condition (race, gender, age, etc.), share an identical set of powers, freedoms, and/or competencies. Scholars have customarily treated natural rights theory as a hallmark of modern legal and political thought, although one with roots in preceding intellectual traditions. In particular, the idea of natural rights has been contrasted with earlier teachings about natural law that were grounded in more robust principles of reason and natural or divine teleology. Many important thinkers of early modern Europe subscribed to a version of natural law without endorsing a doctrine of natural rights.

Central to the concept of natural rights is the view that every human being enjoys a complete and exclusive dominion over his or her mental and bodily facilities—and the fruits thereof—in the form of personal property. Thus, a natural rights theory entails a conception of private ownership grounded on the subjective status of the individual human being. The rights arising from such human subjectivity are both inalienable and imprescriptible in the sense that any attempt to renounce or extinguish them would constitute at the same time the cessation of one's personhood. Thus, for example, natural rights theory renders incoherent arguments for slavery based on alleged natural inequalities of intellect or physique.

Consequently, an important feature of the fully developed idea of natural rights is its direct and immediate political bearing. Given that natural rights may not be curtailed or eliminated without the denial to a person of his or her very humanity, any government that attempts to suppress them without due process has no claim on the obedience of its citizens. Natural rights always take precedence over artificial communal or public rights that might be imposed by political institutions. In this way, the doctrine of natural rights circumscribes political power and may even generate a defense of resistance to or revolution against systems of government that violate the rights of individuals.

The assertion of the modernity of natural rights theory must be qualified by the recognition that many of its characteristic elements were present in and elaborated by earlier theorists. For instance, scholars have found in Aristotle (384–322 B.C.E.) the logical rudiments of natural rights theory, albeit imperfectly articulated and applied. The language of rights was first clearly expressed in the teachings of classical Roman lawyers, for whom ius ('right' or 'law') constituted the basis of law and persons were fundamentally bearers of rights derived from law. Likewise, medieval canon (church) lawyers and Scholastic philosophers insisted that God endowed human beings with basic rights to themselves and to those goods that they required to preserve their divinely created lives.

Many attempts have been made to identify the "first" theorist of natural rights. In addition to Aristotle, the Scholastic philosopher/theologians Jean de Paris (c. 1240–1306; also known as John of Paris), William of Ockham (c. 1285–1349), and Jean de Gerson (1363–1429) have been nominated. Several of the participants in the fourteenth-century controversy between the papacy and the members of the spiritual wing of the Franciscan Order over the status of voluntary ecclesiastical poverty also moved the debate about the naturalness of property ownership in the direction of a theory of rights. Yet in each instance, some of the ingredients central to the fully "subjective" or individualistic doctrine of natural rights doctrine associated with modern thought are absent.

It is perhaps best to examine the development of the theory of natural rights after 1450 as an incremental process. Various thinkers contributed important dimensions to its history without necessarily enunciating the idea in its final form or perhaps even appreciating the wider significance of their particular contributions. One such source may be found in the work of a group of theologians of a Thomist orientation working at the University of Paris in the later fifteenth and early sixteenth centuries, most prominently Conrad Summenhart (c. 1455–1502), John Mair (c. 1468–1550), and Jacques Almain (c. 1480–1515). In a number of writings, these authors equated ius with dominium ('lordship' or 'ownership'), which was understood to reside in people naturally and to license in them the power or faculty of acquiring those objects necessary for self-preservation. Their argument was as much theological as legal or philosophical: just as God enjoyed ultimate ownership of the earth and the rest of his creations by virtue of his will, so human beings, in whom God's image resided, could claim dominion over themselves and their property.

The Reformation brought further refinement and application of the idea of natural rights. On the Protestant side, rights theory became a major element of late sixteenth-century Huguenot efforts to ground the justification of resistance to governments that imposed doctrinal conformity upon religious dissenters. While the earliest generations of Reformers had looked toward duty to God in order to justify acts of political disobedience, a noticeable change in language and concepts occurred in the wake of the St. Bartholomew Day's Massacre of 1572. In their reactions to the massacre, Théodore de Bèze (1519–1605) and Philippe du Plessis Mornay (1549–1623; also known as Duplessis-Mornay), as well as the authors of a large body of anonymous texts, argued for a condition of natural liberty—a privilege of nature whose rightful withdrawal is impossible—that precedes the creation of political society. Hence, any subsequent government must result from, and must be consonant with, the basic natural state of humanity. And those who would use political power to deny to human beings the exercise of their liberty—including the freedom of conscience to dissent from the established Roman Church—may properly and licitly be challenged with forms of resistance to their tyranny. The Huguenots stopped short, however, of advocating popular rebellion. Instead, they looked to so-called intermediary magistrates as the appropriate instigators of resistance to tyrannical conduct. Hence, in the hands of sixteenth-century Reformers, the idea of natural rights became a stimulus for a religiopolitical movement that directly opposed forms of religious intolerance and suppression of dissent.

The Counter-Reformation produced its own version of natural rights theory that developed out of the language and concepts pioneered by the Parisian theologians Mair and Almain. This is especially evident in the work of the so-called second Scholastic thinkers associated with the School of Salamanca, such as Francisco de Vitoria (c. 1480–1546), Domingo de Soto (1494–1560), and Francisco Suárez (1548–1617). Vitoria had been trained at Paris and returned to Spain to disseminate the ideas to which he had been exposed there. Although Vitoria himself wrote nothing, leaving only lecture summaries, his immediate students and their intellectual progeny produced some of the fullest and most enthusiastic elaborations of natural rights. In particular, Vitoria and de Soto explored the complexities of rights theories, moving away from the traditional Thomistic conception of rights as objective duties required by reason. Vitoria's work seems to have contained two differing conceptions of subjective natural rights—one connected with individual dominium, the other defined in relation to communal law. Each position involved notable limitations and flaws, a fact that led de Soto to attempt to resolve them into a coherent picture of rights that incorporated both public and private dimensions. Suárez added further to the picture by identifying ius with self-preservation and drawing from this some, albeit limited, political implications. He held that a natural right existed to resist extreme forms of tyranny, construed as those circumstances in which the survival of the community as a whole was endangered. Otherwise, the misbehavior of government was to be tolerated lest communal destruction result from acts of disobedience and resistance.

While the School of Salamanca remained steeped in the neo-Aristotelian doctrines of the medieval past, other thinkers attempted to replace this framework with a paradigm for natural rights rooted purely in legal principles. Especially celebrated in this regard were Hugo Grotius (1583–1645) and John Selden (1584–1654). Grotius proposed that rights should be grounded solely upon the universality of the propriety of human self-preservation, thus placing self-interest at the center of a natural system. He reasoned that human beings enjoy dominium over those goods that are immediately necessary in order to preserve themselves: rightful private ownership is directly licensed as a natural right. Moreover, he attacked the Aristotelian doctrine of the naturalism of political society. For Grotius, social order was voluntary, and the only reason that people joined into civil society was for self-protection. As a consequence, the individual does not surrender natural rights by entering into a communal arrangement and indeed might resist a direct attack on those rights by a magistrate. While Selden enunciated a sustained critique of Grotius, he ultimately embraced an account of natural rights derived from his adversary. Selden pushed the devaluation of reason understood as a moral force with the power to bind and compel the actions of individuals. Rather, he stressed that natural rights were directly correlated to natural liberty, such that the only basis for individual obligation could be free assent to contracts and compacts, which, once agreed to, had to be maintained without exception. Hence, for Selden, unlike for Grotius, natural liberty itself could be renounced by a valid act of human will.

Selden's best-known follower was Thomas Hobbes (1588–1679), who developed the insights of the former into a powerful individualist theory of natural rights. In his major works, culminating in Leviathan (1651), Hobbes ascribes to all human beings natural liberty as well as equality, on the basis of which they are licensed to undertake whatever actions are necessary in order to preserve themselves from their fellow creatures. Such self-preservation constitutes the indispensable core of human natural rights. Adopting a position radically opposed to the Aristotelian teaching of political naturalism, Hobbes maintained that the exercise of one's natural liberty leads directly to unceasing conflict and unremitting fear, inasmuch as nature confers upon each individual the right to possess everything and no legitimate limitation on one's freedom to enjoy this right. Unalloyed nature yields a state of chaos and warfare and, as a result, a "solitary, poor, nasty, brutish, and short" life, the avoidance of which leads human beings to authorize a single sovereign ruler in order to maintain peace. The exchange of natural freedom for government-imposed order, constructed through a social compact, requires renunciation of all claims on rights that humans possess by nature (except, of course, for the right of self-preservation itself) and voluntary submission to any dictate imposed by the sovereign. In this way, Hobbes seconded Selden's defense of absolute government, yet upheld the basic right to self-preservation. Moreover, under the terms of Hobbes's absolute sovereignty, the subject was still deemed to retain the right to chose for himself concerning any and all matters about which the ruler had not explicitly legislated.

John Locke (1632–1704) crystallized the preceding conceptions of natural rights into the quintessential statement of the modern idea. He began his major work of political theory, the Two Treatises on Government (written c. 1680; published 1689), with the postulation of the divinely granted natural rights of individuals, understood in terms of the absolute right to preserve one's life and to lay claim to the goods one requires for survival. Arguing against the patriarchal doctrine of Sir Robert Filmer (c. 1588–1653), Locke insisted that no natural basis—neither paternity nor descent—justifies the submission of one person to another. Rather, all people are deemed sufficiently rational, as well as free and equal, in their natural condition that they can govern themselves according to a basic cognizance of moral (natural) law, and thus will generally respect the rights of others. In contrast to Hobbes, then, Locke maintained that the condition of perfect natural liberty does not represent a state of war. In the state of nature, human beings can enjoy unimpeded rights to acquire private property, the ownership of which is asserted on the basis of the admixture of their labor (the natural talents and industry of their bodies) with the physical world. Indeed, Locke's state of nature resembles nothing so much as a fully functioning commercial society, which has introduced a system of exchange relations and money, all perfectly consonant with the recognition of the natural rights of individuals.

For Locke, then, there is no pressing necessity for people living in the state of nature to eschew this condition for formalized communal life. Hence, should they chose to enter into bonds of civil society by means of a contract, the sole reason that they do so is to avoid the "inconveniences" and inefficiency of the pre-civil world. This does not require parties to the contract to surrender any of their natural rights. Indeed, the only government worthy of authorization is that which strictly upholds and protects the rights that persons possess by nature. According to Locke, any magistrate that systematically denies to his subjects the exercise of their natural rights to their life, liberty, and estate is tyrannical and unworthy of obedience. Locke closes the Second Treatise with a discussion of the dissolution of government. In his view, a regime that violates systematically natural rights places itself in a state of war with the members of civil society, who severally and individually may renounce allegiance to it and may vote to establish a new government. Some have viewed Locke as justifying revolution on the basis of natural rights, but his actual point seems to be less extreme: the retention of one's natural rights in civil society affords one the ability to protect oneself from those (whether housebreakers or magistrates) who would try to take one's property or limit one's proper sphere of liberty. Locke's resistance theory represents a chastened, but nonetheless genuine, defense of natural rights.

Locke's theory, then, stated an integrated position that drew upon many of the earlier strands of natural rights thought. In turn, the eighteenth century would see the extension, refinement and, in some respects, radicalization of the fundamentals of the Lockean doctrine. Locke's language was adopted, for instance, by both theorists and polemicists who sought to halt Europe's complicity in the global slave trade. Likewise, defenders of the equal rights of women to political and social power, such as Mary Wollstonecraft (1759–1797), framed their ideas in the language of rights. And critics of natural nobility and other claims to in-born human inequality invoked the universality of rights as the basis of their assertion of the equal worth and dignity of all people, regardless of birth, class, or occupation. The elaboration of the Lockean stance during the eighteenth century perhaps enjoyed its European apotheosis in the Revolutionary French Declaration of the Rights of Man and the Citizen. The Declaration, which forms perhaps the major source for all later declarations of human rights, proclaims that the aim of civil life is "the preservation of the natural and imprescriptible rights of man"—they nearly included woman, too—including political, economic, social, religious, and cultural rights as well as resistance to tyranny. Of course, Lockean natural rights received their share of criticism during the eighteenth century as well, whether from communalist democrats such as Jean-Jacques Rousseau (1712–1778) or from more individualistic proponents of political economy like Adam Smith (1723–1790). But in general, the 1700s may well be regarded as the European "century of natural rights."

Bibliography

Primary Sources

Hobbes, Thomas. Leviathan. Edited by Edwin Curley. Indianapolis, 1994.

Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge, U.K., 1988.

Vitoria, Francesco de. Political Writings. Edited by Anthony Pagden and Jeremy Lawrence. Cambridge, U.K., 1991.

Secondary Sources

Brett, Annabel S. Liberty, Right, and Nature: Individual Rights in Later Scholastic Thought. Cambridge, U.K., 1997.

Haakonssen, Knud. Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment. Cambridge, U.K., 1996.

Miller, Fred D., Jr. Nature, Justice, and Rights in Aristotle's Politics. Oxford, 1995.

Skinner, Quentin. The Foundations of Modern Political Thought. 2 vols. Cambridge, U.K., 1978.

Tierney, Brian. The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and Church Law, 1150–1625. Atlanta, 1997.

Tuck, Richard. Natural Rights Theories: Their Origin and Development. Cambridge, U.K., 1979.

—CARY J. NEDERMAN

Rights that people supposedly have under natural law. The Declaration of Independence of the United States lists life, liberty, and the pursuit of happiness as natural rights.