Natural and Legal Rights
Natural and Legal Rights
Natural and Legal Rights
The concept of natural law is closely related to the concept of natural rights. During the Age of
Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and
became an alternative justification for the establishment of a social contract,positive law,
and government and thus legal rights in the form of classical republicanism. Conversely, the
concept of natural rights is used by others to challenge the legitimacy of all such establishments.[1][2]
The idea of human rights is also closely related to that of natural rights: some acknowledge no
difference between the two, regarding them as synonymous, while others choose to keep the terms
separate to eliminate association with some features traditionally associated with natural
rights.[3] Natural rights, in particular, are considered beyond the authority of any government
or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is
an important legal instrument enshrining one conception of natural rights into international soft law.
Natural rights were traditionally viewed as exclusively negative rights,[4]whereas human rights also
comprise positive rights.[5] Even on a natural rights conception of human rights, the two terms may
not be synonymous.
The proposition that animals have natural rights is one that gained the interest of philosophers and
legal scholars in the 20th century and into the 21st.[6]
The legal philosophy known as Declarationism seeks to incorporate the natural rights philosophy of
the United States Declaration of Independence into the body of American case law on a level with
the United States Constitution, since the unanimously agreed upon Doctrines of the Declaration of
Independence is the foundational authority upon which the People and the Continental Congress of
the 13 British Colonies of America based their power to legitimately separate from England and
establish its own government (i.e. the Constitution of the United States). Declarationism philosophy,
therefore, insists that if the United States rejects the natural rights philosophy of the Declaration of
Independence upon which it was founded, it of necessity becomes, retro-actively, an illegitimate
government in treasonous rebellion against its rightful government of Crown and Parliament in
London; and therefore, the Declaration and Constitution must be held as legally inseparable
throughout the entire United States of America (both Federal and State) and its territories.
Contents
[hide]
1History
o 1.1Ancient
o 1.2Modern
1.2.1Thomas Hobbes
1.2.2John Locke
1.2.3Thomas Paine
o 1.3American individualist anarchists
o 1.4Contemporary
2See also
3Notes
4Further reading
5External links
History[edit]
The idea that certain rights are natural or inalienable also has a history dating back at least to
the Stoics of late Antiquity and Catholic law of the early Middle Ages, and descending through
the Protestant Reformation and the Age of Enlightenment to today.[citation needed]
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. The United States Declaration of Independence,
meanwhile, is based upon the "self-evident" truth that "all men are ... endowed by their Creator with
certain unalienable Rights".[7]
Likewise, different philosophers and statesmen have designed different lists of what they believe to
be natural rights; almost all include the right to life and liberty as the two highest priorities. H. L. A.
Hart argued that if there are any rights at all, there must be the right to liberty, for all the others would
depend upon this. T. H. Green argued that if there are such things as rights at all, then, there must
be a right to life and liberty, or, to put it more properly to free life.[8] John Locke emphasized "life,
liberty and property" as primary. However, despite Locke's influential defense of the right of
revolution, Thomas Jefferson substituted "pursuit of happiness" in place of "property" in the United
States Declaration of Independence.
Ancient[edit]
Stephen Kinzer, a veteran journalist for The New York Times and the author of the book All The
Shah's Men, writes in the latter that:
The Zoroastrian religion taught Iranians that citizens have an inalienable right to enlightened
leadership and that the duty of subjects is not simply to obey wise kings but also to rise up against
those who are wicked. Leaders are seen as representative of God on earth, but they deserve
allegiance only as long as they have farr, a kind of divine blessing that they must earn by moral
behavior.
The Stoics held that no one was a slave by nature; slavery was an external condition juxtaposed to
the internal freedom of the soul (sui juris). Seneca the Younger wrote:
It is a mistake to imagine that slavery pervades a man's whole being; the better part of him is exempt
from it: the body indeed is subjected and in the power of a master, but the mind is independent, and
indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is
confined.[9]
Of fundamental importance to the development of the idea of natural rights was the emergence of
the idea of natural human equality. As the historian A.J. Carlyle notes: "There is no change in
political theory so startling in its completeness as the change from the theory of Aristotle to the later
philosophical view represented by Cicero and Seneca.... We think that this cannot be better
exemplified than with regard to the theory of the equality of human nature."[10] Charles H. McIlwain
likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to
political thought" and that "its greatest influence is in the changed conception of law that in part
resulted from it."[11] Cicero argues in De Legibus that "we are born for Justice, and that right is based,
not upon's opinions, but upon Nature."[12]
Modern[edit]
Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage"[13] re-
emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:
Furthermore, every man is responsible for his own faith, and he must see it for himself that he
believes rightly. As little as another can go to hell or heaven for me, so little can he believe or
disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me
to faith or unbelief. Since, then, belief or unbelief is a matter of every one's conscience, and since
this is no lessening of the secular power, the latter should be content and attend to its own affairs
and permit men to believe one thing or another, as they are able and willing, and constrain no one
by force.[14]
17th-century English philosopher John Locke discussed natural rights in his work, identifying them
as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be
surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was
claimed as justification for the rebellion of the American colonies. As George Mason stated in his
draft for the Virginia Declaration of Rights, "all men are born equally free," and hold "certain inherent
natural rights, of which they cannot, by any compact, deprive or divest their posterity."[15] Another
17th-century Englishman, John Lilburne (known as Freeborn John), who came into conflict with both
the monarchy of King Charles I and the military dictatorship of Oliver Cromwell governed republic,
argued for level human basic rights he called "freeborn rights" which he defined as being rights that
every human being is born with, as opposed to rights bestowed by government or by human law.
The distinction between alienable and unalienable rights was introduced by Francis Hutcheson. In
his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the
Declaration of Independence, stating: For wherever any Invasion is made upon unalienable Rights,
there must arise either a perfect, or external Right to Resistance. . . . Unalienable Rights are
essential Limitations in all Governments. Hutcheson, however, placed clear limits on his notion of
unalienable rights, declaring that there can be no Right, or Limitation of Right, inconsistent with, or
opposite to the greatest publick Good."[16] Hutcheson elaborated on this idea of unalienable rights in
his A System of Moral Philosophy (1755), based on the Reformation principle of the liberty of
conscience. One could not in fact give up the capacity for private judgment (e.g., about religious
questions) regardless of any external contracts or oaths to religious or secular authorities so that
right is "unalienable." Hutcheson wrote: "Thus no man can really change his sentiments, judgments,
and inward affections, at the pleasure of another; nor can it tend to any good to make him profess
what is contrary to his heart. The right of private judgment is therefore unalienable."[17]
In the German Enlightenment, Hegel gave a highly developed treatment of this inalienability
argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability
of those aspects of personhood that distinguish persons from things. A thing, like a piece of property,
can in fact be transferred from one person to another. According to Hegel, the same would not apply
to those aspects that make one a person:
The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession
of my personality, of my substantive essence, and make myself a responsible being, capable of
possessing rights and with a moral and religious life, takes away from these characteristics of mine
just that externality which alone made them capable of passing into the possession of someone else.
When I have thus annulled their externality, I cannot lose them through lapse of time or from any
other reason drawn from my prior consent or willingness to alienate them.[18]
In discussion of social contract theory, "inalienable rights" were said to be those rights that could not
be surrendered by citizens to the sovereign. Such rights were thought to benatural rights,
independent of positive law. Some social contract theorists reasoned, however, that in the natural
state only the strongest could benefit from their rights. Thus, people form an implicit social contract,
ceding their natural rights to the authority to protect the people from abuse, and living henceforth
under the legal rights of that authority.
Many historical apologies for slavery and illiberal government were based on explicit or implicit
voluntary contracts to alienate any "natural rights" to freedom and self-determination.[19] The de
facto inalienability arguments of Hutcheson and his predecessors provided the basis for the anti-
slavery movement to argue not simply against involuntary slavery but against any explicit or implied
contractual forms of slavery. Any contract that tried to legally alienate such a right would be
inherently invalid. Similarly, the argument was used by the democratic movement to argue against
any explicit or implied social contracts of subjection (pactum subjectionis) by which a people would
supposedly alienate their right of self-government to a sovereign as, for example,
in Leviathan by Thomas Hobbes. According to Ernst Cassirer,
There is, at least, one right that cannot be ceded or abandoned: the right to personality...They
charged the great logician [Hobbes] with a contradiction in terms. If a man could give up his
personality he would cease being a moral being. ... There is no pactum subjectionis, no act of
submission by which man can give up the state of free agent and enslave himself. For by such an
act of renunciation he would give up that very character which constitutes his nature and essence:
he would lose his humanity.[20]
These themes converged in the debate about American Independence. While Jefferson was writing
the Declaration of Independence, Richard Price in England sided with the Americans' claim "that
Great Britain is attempting to rob them of that liberty to which every member of society and all civil
communities have a natural and unalienable title."[21]:67Price again based the argument on the de
facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents
or which gives us a command over our actions, rendering them properly ours, and not effects of the
operation of any foreign cause."[21]:6768 Any social contract or compact allegedly alienating these
rights would be non-binding and void, wrote Price:
Neither can any state acquire such an authority over other states in virtue of any compacts or
cessions. This is a case in which compacts are not binding. Civil liberty is, in this respect, on the
same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving
up their right of judging for themselves in religion, or by allowing any human beings to prescribe to
them what faith they shall embrace, or what mode of worship they shall practise, so neither can any
civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their
power of legislating for themselves and disposing their property.[21]:7879
Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and
again restated the de facto basis for the argument that the "liberty of men as agents is that power of
self-determination which all agents, as such, possess."[22] In Intellectual Origins of American
Radicalism, Staughton Lynd pulled together these themes and related them to the slavery debate:
Then it turned out to make considerable difference whether one said slavery was wrong because
every man has a natural right to the possession of his own body, or because every man has a
natural right freely to determine his own destiny. The first kind of right was alienable: thus Locke
neatly derived slavery from capture in war, whereby a man forfeited his labor to the conqueror who
might lawfully have killed him; and thus Dred Scott was judged permanently to have given up his
freedom. But the second kind of right, what Price called "that power of self-determination which all
agents, as such, possess," was inalienable as long man remained man. Like the mind's quest for
religious truth from which it was derived, self-determination was not a claim to ownership which
might be both acquired and surrendered, but an inextricable aspect of the activity of being human.[23]
Meanwhile, in America, Thomas Jefferson "took his division of rights into alienable and unalienable
from Hutcheson, who made the distinction popular and important",[24] and in the 1776 United States
Declaration of Independence, famously condensed this to:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights...
In the 19th century, the movement to abolish slavery seized this passage as a statement of
constitutional principle, although the U.S. constitution recognized and protected slavery. As a lawyer,
future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van
Zandt, who had been charged with violating the Fugitive Slave Act, that:
The law of the Creator, which invests every human being with an inalienable title to freedom, cannot
be repealed by any interior law which asserts that man is property.
The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as
groundless. Bentham and Burke, writing in 18th century Britain, claimed that rights arise from the
actions of government, or evolve from tradition, and that neither of these can provide
anything inalienable. (See Bentham's "Critique of the Doctrine of Inalienable, Natural Rights", and
Burke's Reflections on the Revolution in France). Presaging the shift in thinking in the 19th century,
Bentham famously dismissed the idea of natural rights as "nonsense on stilts". By way of contrast to
the views of British nationals Burke and Bentham, the leading American revolutionary scholar James
Wilson condemned Burke's view as "tyranny."[25]
The signers of the Declaration of Independence deemed it a "self-evident truth" that all men are
"endowed by their Creator with certain unalienable Rights". In The Social Contract, Jean-Jacques
Rousseau claims that the existence of inalienable rights is unnecessary for the existence of
a constitution or a set of laws and rights. This idea of a social contract that rights and
responsibilities are derived from a consensual contract between the government and the people is
the most widely recognized alternative.
One criticism of natural rights theory is that one cannot draw norms from facts.[26] This objection is
variously expressed as the is-ought problem, the naturalistic fallacy, or theappeal to nature. G.E.
Moore, for example, said that ethical naturalism falls prey to the naturalistic fallacy.[citation needed] Some
defenders of natural rights theory, however, counter that the term "natural" in "natural rights" is
contrasted with "artificial" rather than referring to nature. John Finnis, for example, contends
that natural law and natural rights are derived from self-evident principles, not from speculative
principles or from facts.[26]
There is also debate as to whether all rights are either natural or legal. Fourth president of the United
States James Madison, while representing Virginia in the House of Representatives, believed that
there are rights, such as trial by jury, that are social rights, arising neither from natural law nor
from positive law (which are the basis of natural and legal rights respectively) but from the social
contract from which a government derives its authority.[27]
Thomas Hobbes[edit]
Main article: Thomas Hobbes
Thomas Hobbes
Thomas Hobbes (15881679) included a discussion of natural rights in his moral and political
philosophy. Hobbes' conception of natural rights extended from his conception of man in a "state of
nature". Thus he argued that the essential natural (human) right was "to use his own power, as he
will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently,
of doing any thing, which in his own judgement, and Reason, he shall conceive to be the aptest
means thereunto." (Leviathan. 1, XIV)
Hobbes sharply distinguished this natural "liberty", from natural "laws", described generally as "a
precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is
destructive of his life, or taketh away the means of preserving his life; and to omit, that, by which he
thinketh it may best be preserved." (Leviathan. 1, XIV)
In his natural state, according to Hobbes, man's life consisted entirely of liberties and not at all of
laws "It followeth, that in such a condition, every man has the right to every thing; even to one
another's body. And therefore, as long as this natural Right of every man to every thing endureth,
there can be no security to any man... of living out the time, which Nature ordinarily allow men to
live." (Leviathan. 1, XIV)
This would lead inevitably to a situation known as the "war of all against all", in which human beings
kill, steal and enslave others in order to stay alive, and due to their natural lust for "Gain", "Safety"
and "Reputation". Hobbes reasoned that this world of chaos created by unlimited rights was highly
undesirable, since it would cause human life to be "solitary, poor, nasty, brutish, and short". As such,
if humans wish to live peacefully they must give up most of their natural rights and create 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, and people will not follow the laws of nature without first
being subjected to a sovereign power, without which all ideas of right and wrong are meaningless
"Therefore before the names of Just and Unjust can have place, there must be some coercive
Power, to compel men equally to the performance of their Covenants..., to make good that Propriety,
which by mutual contract men acquire, in recompense of the universal Right they abandon: and such
power there is none before the erection of the Commonwealth." (Leviathan. 1, XV)
This marked an important departure from medieval natural law theories which gave precedence to
obligations over rights.
John Locke[edit]
Main article: John Locke
John Locke (16321704) was another prominent Western philosopher who conceptualized rights as
natural and inalienable. Like Hobbes, Locke believed in a natural right to life, liberty, and property. It
was once conventional wisdom that Locke greatly influenced the American Revolutionary Warwith
his writings of natural rights, but this claim has been the subject of protracted dispute in recent
decades. For example, the historian Ray Forrest Harvey declared that Jefferson and Locke were at
"two opposite poles" in their political philosophy, as evidenced by Jeffersons use in the Declaration
of Independence of the phrase "pursuit of happiness" instead of "property."[28] More recently, the
eminent[29] legal historian John Phillip Reid has deplored contemporary scholars "misplaced
emphasis on John Locke," arguing that American revolutionary leaders saw Locke as
a commentator on established constitutional principles.[30][31] Thomas Pangle has defended Locke's
influence on the Founding, claiming that historians who argue to the contrary either misrepresent the
classical republican alternative to which they say the revolutionary leaders adhered, do not
understand Locke, or point to someone else who was decisively influenced by Locke.[32] This position
has also been sustained by Michael Zuckert.[33][34][35]
According to Locke there are three natural rights:
The social contract is an agreement between members of a country to live within a shared system of
laws. Specific forms of government are the result of the decisions made by these persons acting in
their collective capacity. Government is instituted to make laws that protect these three natural
rights. If a government does not properly protect these rights, it can be overthrown.
Thomas Paine[edit]
Main article: Thomas Paine
Thomas Paine
Thomas Paine (17311809) further elaborated on natural rights in his influential work Rights of
Man (1791), emphasizing that rights cannot be granted by any charter because this would legally
imply they can also be revoked and under such circumstances they would be reduced to privileges:
It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect that of
taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights,
in the majority, leave the right, by exclusion, in the hands of a few. ... They...consequently are
instruments of injustice.
The fact therefore must be that the individuals themselves, each in his own personal and sovereign
right, entered into a compact with each other to produce a government: and this is the only mode in
which governments have a right to arise, and the only principle on which they have a right to exist.
While at first American individualist anarchists adhered to natural rights positions, later in this era led
by Benjamin Tucker, some abandoned natural rights positions and converted to Max Stirner's Egoist
anarchism. Rejecting the idea of moral rights, Tucker said that there were only two rights: "the right
of might" and "the right of contract".[citation needed] He also said, after converting to Egoist individualism,
"In times past... it was my habit to talk glibly of the right of man to land. It was a bad habit, and I long
ago sloughed it off.... Man's only right to land is his might over it."[37]
In adopting Stirnerite egoism (1886), Tucker rejected natural rights which had long been considered
the foundation of libertarianism. This rejection galvanized the movement into fierce debates, with the
natural rights proponents accusing the egoists of destroying libertarianism itself. So bitter was the
conflict that a number of natural rights proponents withdrew from the pages of Liberty in protest even
though they had hitherto been among its frequent contributors. Thereafter, Liberty championed
egoism although its general content did not change significantly.[38]
Contemporary[edit]
Many documents now echo the phrase used in the United States Declaration of Independence. The
preamble to the 1948 United Nations Universal Declaration of Human Rightsasserts that rights are
inalienable: "recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world." Article 1, 1 of
the California Constitution recognizes inalienable rights, and articulated some (not all) of those rights
as "defending life and liberty, acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy." However, there is still much dispute over which "rights"
are truly natural rights and which are not, and the concept of natural or inalienable rights is still
controversial to some.
Erich Fromm argued that some powers over human beings could be wielded only by God, and that if
there were no God, no human beings could wield these powers.[39]
Samuel P. Huntington, an American political scientist, wrote that the "inalienable rights" argument
from the Declaration of Independence was necessary because "The British were white, Anglo, and
Protestant, just as we were. [Advocates for the Declaration's adoption] had to have some other basis
on which to justify independence".[46]
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.
Hugh Gibbons has proposed a descriptive argument based on human biology. His contention is that
Human Beings were other-regarding as a matter of necessity, in order to avoid the costs of conflict.
Over time they developed expectations that individuals would act in certain ways which were then
prescribed by society (duties of care etc.) and that eventually crystallized into actionable rights.[47]
1. Think Twice About It
2. Walk on Water
3. Space Invaders
4. You Are Always on my Mind
5. Keep on Smiling
6. It Doesn't Add Up
Falling Temperature
2. Two Under Par
3. Fat Chance
4. Broken Heart
5. Hot Under the Collar
6. Head in the Sand
WORDS + PUZZLES = WUZZLES
WUZZLES are word puzzles consisting of combinations of words, letters, figures or symbols
positioned to create disguised words, phrases, names, places, sayings etc. This type of puzzle is
called a rebus -- a word and symbol puzzle that dates back more than 2,000 years to the Persian
Empire.
The secret to solving WUZZLES word puzzles is to determine the missing "concept," such as in,
on, over, under, before, after, between etc. For example, the solution to NOON GOOD is "Good
afternoon," and LINE READ LINE is "Read between the lines."
WUZZLE 1
1. Falling Temperature
3. Fat Chance
4. Broken Heart
5. Hot Under the Collar
WUZZLE 2
5. Be-Line
WUZZLE 3
1. Somewhere Over the Rainbow
4. Just Right
6. High Seas
WUZZLE 4
1. Play on Words
2. Get in Shape
4. Dr. Dolittle
5. Fooling Around
WUZZLE 5
1. Backing Up
3. Quarterback
4. Coffee Break
5. Identical Twins
1. No one to Blame
4. Down Payment
5. Left Overs
6. Bedspread
WUZZLE 7
1. Cry all the way to the bank
5. Miniskirt
6. All in All
WUZZLE 8
1. Last Dance
2. For Crying Out Loud
3. Inground Pool
4. No TV for a Week
5. High Frequency
6. Sit Ups
WUZZLE 9
1. Foreign Policy
2. Party line
3. Covered Wagon
5. Midwife
6. Off Sides
WUZZLE 10
1. Working Overtime
2. Do Without
3. Teddy Bear
5. Eiffel Tower
6. Long Island
WUZZLE 11
1. Tulips
WUZZLE 12
5. Jumbo Jet
6. Minimize
WUZZLE 13
1. Decide
2. Spaceship
3. Multiple Choice
4. Floor Model
5. Noone Knows
6. Thunderstorm
WUZZLE 14
1. Sixth Sense
2. To Sum it Up
3. Blanket
4. Strong Undertow
5. Back Issues
WUZZLE 15
1. Keeping You Out of Trouble
2. Foreign Movie
WUZZLE 16
3. Peppermint twist
4. Forefathers
5. Enroll
6. Addresses
WUZZLE 17
3. No can do
4. Honest to goodness
5. Way overpriced
6. Living on a shoestring
WUZZLE 18
1. Drawn to scale
2. Round of Applause
3. Splitting Hairs
5. There's no end to it
WUZZLE 19
1. Words of wisdom
4. High chair
5. Flat tire
WUZZLE 20
1. Standing Ovation
2. Tally ho
3. Blockhead
4. Shadow of doubt
5. We drove right by it