Natural Rights

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NATURAL RIGHTS

Together with the companion ideas of the state of nature and the social compact, the idea of natural rights exerted great influence during the Revolutionary era and remained extremely potent in the years of the early Republic, and in somewhat modified form, it remains important even into the twenty-first century.

prevalence of the philosophy of rights

The best-known example of a doctrine of rights is, of course, the second paragraph of the Declaration of Independence, but it is impossible to read very far in other documents and writings of the new nation without finding similar invocations of the philosophy of natural rights and the social contract. Thus Samuel Adams in his 1772 draft of "The Rights of the Colonists" begins with "The Natural Rights of the Colonists as Men." The 1774 Declaration and Resolves of the First Continental Congress declared in its first resolution the familiar triad of rights to "life, liberty and property"—rights said to be held under "the immutable laws of nature." Thomas Paine in his widely read pamphlet Common Sense (1776) appeals to "the equal rights of nature" to prove that hereditary monarchy cannot be a legitimate form of government. Some years later, during the French Revolution, Paine wrote another essay, The Rights of Man, devoted to defending the doctrine of natural rights against the critique leveled by Edmund Burke. The constitutions of the Revolutionary states contained clear references to natural-rights philosophy, with George Mason's draft of the Virginia Declaration of Rights of June 1776 being perhaps the most significant and most widely copied in the other states. Mason's version affirmed "that all men … have certain inherent natural rights…, among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." This list is obviously very close to the better known triad affirmed in Jefferson's Declaration of Independence: "that all men … are endowed by their creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness."

Although the U.S. Constitution does not contain a comparable recitation of the philosophy of rights, the reason for that is not that the drafters of the Constitution no longer thought natural rights important, but that the Constitution was a union of preexisting states that had already committed themselves to theses of natural rights in their constitutions and bills of rights. When James Madison drew up the draft for the federal Bill of Rights, he proposed that there be "prefixed to the Constitution" a statement patterned after Mason's Virginia Declaration of Rights. This proposal was not accepted, only because it was decided to append the Bill of Rights as a series of amendments following the original constitutional text, rather than, as in many of the state constitutions, to begin with a statement of principle prefacing the Constitution.

on the nature of rights

Although those who appealed to the philosophy of natural rights were otherwise as different from each other as Alexander Hamilton and Thomas Jefferson, George Mason and James Wilson, Thomas Paine and John Adams, there was a great deal of consensus on how to understand natural rights. All agreed that some rights were natural, that is to say, not derived from any human agreement, act, or law. The rights preceded law and established claims that could be raised against existing law and government, as the Americans did in their struggle against Britain. These rights were thus deemed inherent and inalienable. The rights inhered in human beings and thus did not come from an external source. Because the rights were inherent, they could not be alienated, that is, given up or taken away. These rights were also often said to come from God ("endowed by their creator … "). This phrase is not meant to deny that the rights are natural or inherent; rather, it means that the rights come to individuals with their creation, with their coming into being within a created order.

Natural rights were frequently said to derive from natural law. Nonetheless, Americans of the early national period were heirs of a conceptual evolution sponsored by the political philosophers who had developed the philosophy of rights—the Dutch philosopher Hugo Grotius and the English thinkers Thomas Hobbes and John Locke in particular—an evolution that had produced a firm theoretical distinction between a law and a right. Laws set down what must or must not be done. They are clearly directive. Rights, however, are permissive and discretionary. They establish a sphere of liberty and choice for the bearer of rights. Such rights were thus frequently spoken of as liberties. The right of free speech, to take an easy example, means that one has liberty to speak or not, as one chooses. A society organized around rights tends to be a liberal society, in the sense of leaving large areas of discretion for individuals to act as they choose.

the table of natural rights

There was also general agreement on the specific natural rights possessed by individuals, as evidenced by the similarity of lists of rights generated at the time. The first right cited in all these formulations was the right to life, the right to what is most one's own. Since life depends on the body, the right to life implies a right to bodily security, the right not to have one's body seized, invaded, controlled, or harmed by others.

The right to liberty extends the right to life. One not only possesses a right against others' interfering with one's body; one also possesses a right to exercise one's bodily and mental faculties. Liberty is in part a means toward securing life, but more than that it is the way humans express their ability to appropriate their bodies and invest them with purpose. The right to liberty expresses the self-directed nature of being human. A corollary of this right is the responsibility individuals have for their actions and for the foreseeable consequences of those actions.

The right to property involves an extension from rights in the sphere of one's own life, body, and actions to rights in the external world. It is the legal expression of the ability of individuals to make the external their own, just as they can make their bodies their own. In the context of the Revolution and early Republic, the right to property was particularly important, as can be seen in the overwhelming demand for constitutional guarantees of representation for those subject to taxes. This constitutional demand derives support from the natural right to property, since the right of others (even kings) to take property without the consent of the property owners was understood to be a violation of the right to property.

These rights together amount to an affirmation of a kind of personal sovereignty, a right to control one's person, actions, and possessions in the service of one's broader purposes. When seen as an integrated system of immunities and controls, the specific rights sum to a comprehensive right to pursue happiness, to pursue a way of life chosen by the agent as a path to happiness. Of course, this right, like all rights, is not absolute; the rights of others and the common good serve as valid limitations on personal rights.

There was also great, if not universal, agreement on who were the bearers of these rights. As the Declaration of Independence says, the truths about rights apply to "all men." This term was understood almost universally to include women and individuals of other races. In the early years of the nation it was widely recognized that slavery was a violation of natural rights, and for this reason there was a substantial movement to abolish slavery. It was also recognized that the denial of voting rights to women, for example, did not imply that women lacked natural rights. The philosophy of rights distinguished natural from civil and political rights. The first set of rights belongs universally to all humans, but the other two sets do not necessarily belong to them. It was thought that relevant to the bestowal of the latter rights were considerations other than mere personhood or membership in the species, considerations like the organization of civil society.

implications of rights

Natural rights were understood to have a number of important corollaries. The first is natural equality. Since all persons have the right to pursue happiness, to order their lives as they see fit, there can be no question that anyone possesses a natural right to rule over others. All are equal in that no one naturally has authority over another. This natural equality was also spoken of in the literature of the day as the state of nature, that is, as a state lacking any relations of legitimate authority. Authority must therefore derive from "the consent of the governed." Consent was understood to be equivalent to what was also called the social contract. Consent applied in the first instance to the formation of government and the origin of political authority, rather than to the ongoing conduct of politics. The requirement of consent derives from the primal rights, and consent to authority is given primarily to protect those rights. A further implication, then, is that if an authority does not secure but rather threatens rights, it has gone beyond its proper warrant and may be altered or abolished. From this idea flows the right of Revolution, which the colonists affirmed when they revolted.

The philosophy of rights and the ideas of a state of nature and a social contract together had a great impact on political thinking and acting in the new nation. The doctrine served as a general criterion of legitimacy, to be applied not only to the British Empire that Americans rebelled against but also to the new governments they were establishing. Under the tutelage of Thomas Paine, Americans quickly drew the conclusion that only a republican form of government could be legitimate. They concluded that all sovereign power originated in the people and must ultimately remain in the hands of the people (popular sovereignty). Beyond that, Americans perceived that many aspects of society required reordering, although they proceeded cautiously and unevenly in their efforts at reform. The American who perhaps gave the most serious thought to what would be required for a republic founded on natural rights was Thomas Jefferson, who set off to reform the laws of Virginia in a comprehensive way but was only partly successful. His proposals for revising the laws stands as the most thoroughgoing effort at effecting the implications of natural rights for the ordering of society. In his proposals he advocated abolishing slavery (because it violated natural rights), securing republican or popular government, providing basic public education for all and higher education for the most talented, allowing freedom of conscience, and abolishing feudal land laws. This list gives a brief indication of some of the grand implications that were seen to follow for society at large from a philosophy of natural rights.

foundations of rights

There was much less consensus on the basis of natural rights than on the rest of the philosophy of rights. There were a number of competing theories about the grounds of rights. Some theories derived natural rights from the moral sense; others from natural theology. Still others looked to self-ownership or human autonomy or the natural order of the passions. The disagreement over foundations became important later, but it was no impediment to agreeing on rights and their corollaries in the early years of the nation.