Natural Rights

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Natural Rights

Unlimited sovereignty and limited government

The doctrine of natural rights is properly to be understood as an aspect or feature of the modern doctrine of natural law. Natural rights (plural) are to be carefully distinguished from that natural right (singular) which is a central conception of classical, premodern political philosophy. Both the premodern and modern teachings result in judgments that some things are naturally right, or right according to nature, and that these things are intrinsically right, or right independently of opinion.

In classical political philosophy “natural right” refers to the objective rightness of the right things, whether the virtue of a soul, the correctness of an action, or the excellence of a regime. Thus Aristotle says in Politics (1323a29-33) that no one would call a man happy who was completely lacking in courage, temperance, justice, or wisdom. A man who was easily frightened, unable to restrain any impulse toward food or drink, willing to ruin his friends for a trifle, and generally senseless could not possibly lead a good life. Even though chance may occasionally prevent good actions from having their normal consequences, so that sometimes cowards fare better than brave men, courage is still objectively better than cowardice. The virtues and actions that contribute to the good life, and the activities intrinsic to the good life, are naturally right.

“Natural rights,” on the other hand, are the rights that all men possess, because of which they may be obligated to act, or to refrain from acting, in certain ways. According to the teaching developed primarily by Hobbes and Locke, there are many natural rights, but all of them are inferences from one original right, the right that each man has to preserve his life. All other natural rights, like the right to liberty and the right to property, are necessary inferences from the right of self-preservation, or are conceived as implicit in the exercise of that primary right. Similarly, the natural law founded upon natural rights consists of deductions made from the primary right and its implications. The sum of these deductions is the state of civil society. The doctrine of natural rights teaches primarily, then, that all obligation is derived from the right which every man has to preserve his own life. Conversely, it teaches that no man can be bound to regard as a duty whatever he regards as destructive to the security of his life. Thus slavery is wrong because no one can reasonably be asked to place his life at the mercy of another, and not, as in classical natural right, only when it constitutes a wrongful appropriation of one man’s life and labor by another.

From this point of view, what is intrinsically right is no longer what is required by, or what partakes of, the good life; rather, it is what is subjectively regarded by the individual as necessary to his security. The individual, abstractly considered, becomes the subject of rights, apart from any particular qualities he may have. “All men are created equal” means, among other things, that the rights each individual possesses by nature are entirely independent of whether he is strong or weak, wise or foolish, virtuous or vicious. The premodern doctrine of natural right, holding that men are obligated by what is required for their perfection or happiness, regarded the less intelligent and less virtuous as being naturally obligated to obey the more intelligent and more virtuous. This natural obligation was independent of the many prudent compromises that various circumstances might dictate—some of them very democratic compromises —by which the consent and loyalty of the less excellent might be enlisted in the service of a regime. But classical natural right was inherently aristocratic in its tendency. The modern doctrine of natural rights makes every individual equally the source of legitimate authority. Moreover, it makes the people as a whole the judge of the legitimacy of the exercise of this authority. Thus, although the doctrine of natural rights may sanction other forms of government—including limited monarchy, as the Declaration of Independence indicates—it is inherently democratic in its tendency. Classical natural right is politically comprehensive, since there is virtually no aspect of human life which does not bear upon its quality. This is indicated by Aristotle’s saying that what the law does not command, it forbids. The parallel modern maxim, exhibiting the far more limited scope of the modern state, holds that what the law does not forbid, it permits.

State and polis

The state erected upon the doctrine of natural rights tends in this way to be liberal or permissive. For the doctrine gives rise to the notion that there is a private sphere within which the activities of the individual, or at least those of his activities which do not affect the security of the equal rights of his fellow citizens, should be immune to public inquiry or public control. The activities of the state are thus directed toward providing security for life and for liberty—which are among the conditions of happiness—but not toward providing happiness itself. Each man is to be left free to seek this according to his own private opinion of what happiness is. It is for this reason that Jefferson names, not happiness, but the pursuit of happiness, as being among those rights for the sake of which man organizes civil society.

Nothing better indicates the difference between the earlier and later doctrines than their attitudes toward religion. From the point of view of classical natural right, religion is one of the most important means by which men are directed toward virtue, and hence toward temporal no less than toward eternal felicity. Accordingly, religious institutions are among the most important political institutions. The point of view of the adherent of the modern natural rights school, on the other hand, was perfectly expressed by Jefferson when he wrote, “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”

The classical polis, or political community, may be defined as that community which includes all other communities but is itself included in none. It is the comprehensive form of human association, and its purposes ascend from the necessary conditions of human existence—the provision of material necessities and of security from all forms of violence—to the sufficient conditions. The latter include the formation of good character in the citizens, education in the liberal arts, and participation in politics and philosophy. These are the characteristic pursuits of gentlemen, and rule by gentlemen is the characteristic solution to the political problem, according to classical natural right. The polis is a partnership in justice, but justice is essentially inferior to friendship. Friendship, writes Aristotle, seems to hold political communities together more than does justice, and legislators seem to care for it more than for justice. For when men are friends, they have no need of justice, but when they are just, they still have need of friends. This implies, among other things, that the polis, as distinct from the modern state, is a very small society. Its size is such that there is virtually no one among the citizens who cannot be either a friend, or a friend of a friend, of every other citizen. For this reason the ultimate sanctions for justice are not the penalties that can be exacted in the law courts but ostracism, formal or informal, from that fellowship in which alone the good citizen feels he can lead the good life. That is at least implied in Socrates’ apparent preference of death to exile, as expressed in Plato’s Crito.

The modern state, erected upon the doctrine of natural rights, is in principle a large society, if not a mass society. The natural limits upon the size of the polis, within which classical natural right has its proper home, are determined by human ability to participate in a common good, by face-to-face relationships. The modern state, however, is founded upon the notion of a social contract and is held together by the power of a sovereign authority to enforce the terms and consequences of that contract. Since the more powerful the sovereign is, the better he is able to perform his functions, and since increase in the size of the state generally adds to the power of the sovereign, the state thus has an inherent tendency to an almost indefinite expansion.

Sovereignty

Sovereignty, as the term has been used since Hobbes, differs radically in meaning from the corresponding term in classical political philosophy, for the same reason that polis differs from “state.” In a polis, whoever actually governs—whether the people, the rich, the nobility, or a tyrant—is the sovereign. In the United States of America, however, the governing officials are not the sovereign authority. The people of the United States is the sovereign, even though the people only acts through representatives. It is true that the logic of the notion of sovereignty would permit the people of the United States to transfer its authority to a hereditary monarch. Should it do so, however, the monarch would still represent the people, although the form of the representation would no longer be democratic or republican.

The modern concept of sovereignty can be deduced quite strictly from the proposition that all men are created equal. This proposition does not mean, as we have noted, that men are equal in virtue or intelligence, but that they are equal in certain rights. Each man has a natural right to preserve his life, and no man has a natural obligation to defer to any other man, in deciding what does, and what does not, tend to his own preservation. Government, accordingly, does not exist by nature. The state of nature is the state of men without government. In the state of nature, men’s rights are perfect, and they have no duties. The ground of sovereignty is the complete right that every man has to everything in the state of nature, a right which is unlimited because, every man being equal in authority to every other man, there is no one who can prescribe any limits to anyone else. There are limits in the state of nature to what a man may rightly intend to do, since he may not naturally or reasonably intend his own destruction. But these are limits implicit in the inclination to self-preservation, not limits upon what may be done from that inclination.

For reasons sufficiently evident, life in the state of nature, as John Locke puts it, is full of inconveniences or, in the more pungent language of Thomas Hobbes, it is nasty, brutish, and short. The remedy for the state of nature is the state of civil society, and we must consider carefully how men as equal as those in the state of nature can thus transform their condition. They can do so by consenting or agreeing, each with the other, that they will surrender the exercise of their unlimited right to be sole judges of what tends to their own preservation. This surrender must be equal by each, and it must be complete. No one in civil society can continue to exercise any part of the right he had in the state of nature to be his own master. This agreement, which is the social contract, is an agreement that is made by everyone with everyone. It transforms many isolated individuals into one people, a corporate entity. The agreement is unanimous, for the simple reason that whoever does not agree is not part of the people. Whoever stands outside the agreement is still in a state of nature with respect to the people created by the agreement.

The consequence of the social contract is that henceforward the whole power of the incorporate people shall defend the life of each one of them, instead of each one having to defend himself alone. In order for the whole to act thus, there must be a part which can represent the whole and which can decide for and command the whole. But what part is this? The answer or, more precisely, the initial answer, to this question is “the majority.” The majority is the only part which can stand for the whole as soon as the social contract has been made. Unanimity is impossible except with respect to the contract itself. And this, we have seen, is an agreement to let a part stand for the whole. The rule of a minority is inadmissible, for this would imply some reservation by the ruling minority of some of the right each possessed in the state of nature but which all are supposed equally to surrender by entering civil society. Any such reservation would void their membership in the civil society. Hence the rule of the majority is the only rule which is not inconsistent with the original natural equality of all.

Thus the natural right each individual possessed alone, the unlimited right to everything he deemed necessary to his preservation, is transformed into a legal or conventional right possessed by the whole people acting by the majority. However, just as the surrender of the individual’s right led to the right of the majority, so the majority may, according to its judgment, surrender its right to a minority. Many forms of government may be legitimate, according to the doctrine of natural rights, yet simple majoritarianism is the only form which is necessarily legitimate. Moreover, while legal or conventional sovereignty may devolve first to a majority, then to a minority, the natural right to life and liberty remains inalienable in the bosoms of individuals, whose consent to be governed is always conditional.

Nature and convention

We have seen that sovereignty, as a construction from the unlimited right of every individual in the state of nature, is itself inherently unlimited. The government of the United States, however, is a limited government, prohibited from doing many things, such as passing ex post facto laws and bills of attainder, granting patents of nobility, or establishing a state church. Yet these limits are themselves impositions by the sovereign people of the United States. The people have laid down these boundaries to government, and the people may take them away. From the point of view of the concept of sovereignty, the sovereign may do anything not naturally impossible. But the absoluteness of sovereign power is legal and hypothetical, not natural. For example, the American people may establish a state church, but they ought not to. They ought not to do anything inconsistent with their intention in forming a civil society, which intention was to overcome the discord of wills in the state of nature. Religious disestablishment is now plainly more conducive to that end than is establishment. This distinction reproduces that of the state of nature, in which nothing the individual does can be unjust, because there is no authority which can prescribe to him. Yet he ought not to act in a manner contrary to his self-preservation; for example, he ought not to be unwilling to leave the state of nature when others are willing to join with him in the agreement which produces civil society. Thus, also, the American people may do anything they decide to do, because there is no sovereign to prescribe to them. Yet they ought not to do anything harmful, or omit anything beneficial, to their self-preservation.

The incorporation of naturally discrete individuals into one people creates an artificial person. For the many to regard the decision of a part as if it were a decision of a whole involves a second element of artifice or fiction: the first is that the many are one and the second is that the part is a whole. The doctrine of natural rights logically requires employment of this twofold fiction. And the polarity of this dual fiction is anchored in a twofold nature, a nature constituted by the undeniable concrete reality of the discrete individual, at the one end, and by the equally undeniable abstract reality of the human race, as a species, at the other. “All men are created equal” at once entails propositions about each individual and about the whole human species, of which he is a part. For this reason, the logic which leads individuals out of the state of nature suggests that sovereigns—who remain in the state of nature with respect to each other—can also emerge from this state by forming a world state. Thus there is also an inherent tendency in the doctrine of natural rights toward the world state, or at least toward a world society inhabited by a comparatively few pacific sovereigns. We may observe that if the whole human race were to become incorporated into one people, then the fiction whereby the many are declared to be one would in one sense coincide with a natural reality. For the fictitious one people would then coincide with the abstract one human race. However, we may also observe that, were it to do so, the fiction that a part represented a whole would thereby become that much more fictitious.

Despite the necessity of the aforesaid fictions, individuals do not cease to be individuals in civil society. Their self-love, the foundation of their natural rights, continues to animate them. A man assaulted in the street may use violence to defend himself, in the absence of legal protection. Moreover, if the power of the sovereign should ever be perverted, so that it becomes the enemy of the people or of any part of the people, the right which has been “completely” surrendered may in fact be resumed. For the surrender was for a purpose—to secure the rights to life, liberty, and the pursuit of happiness—and whenever government becomes destructive of these ends, obedience may be withdrawn. The clear right of the people to alter or abolish governments is a constant incentive to good behavior by governments. The more a government convinces the people it is serving them well, the better they will obey it. The better they obey, the stronger the government, and the stronger the government, the better it can serve.

Unlimited sovereignty and limited government

The exercise of sovereignty is intended to be limited, moderated, and strengthened by the reason that makes sovereignty itself illimitable. For this same reason it must be indivisible. Although the political system of the United States embraces a twofold jurisdiction, of the governments of the states and of the government of the United States, this does not imply a division of sovereignty within the United States. John C. Calhoun remarked that sovereignty was like chastity, that it could not be surrendered in part. This acute witticism accurately reflects the fundamental theoretical construction presented here. As we have seen, equal individuals escape from the state of nature by equally agreeing to surrender to a sovereign the perfect freedom they possessed in that state. But just as, in the defined sense, the individual must surrender all his right to be his own master in order to gain the protection of civil society, so the members of a small civil society cannot become members of a larger civil society without making a similar surrender of sovereignty. For this reason Abraham Lincoln agreed with Calhoun that any division of sovereignty between states and nation was out of the question. But while Calhoun maintained that sovereignty had remained with the states, Lincoln insisted that it must repose in the nation, in the American people as a whole.

Certainly the Declaration of Independence, from which we have construed much of this account of natural rights teaching, supports Lincoln’s position. For it speaks emphatically of “one people” dissolving the political bonds which had hitherto connected them with Great Britain. That people was then conducting a war to preserve themselves from what they believed to be the anarchic violence of the British sovereign. It would have been inconsistent with the purpose of that “one people” to have divided themselves into 13 peoples at the same moment that they united to resist oppression. To have done so would have meant that they had deliberately reproduced the dangers of the state of nature with respect to each other at the very moment when they had combined to escape those dangers with respect to the British crown. Therefore, in 1776 the states of the union can have been sovereign only insofar as they were united, and were and are sovereign only because the people of those states were and are parts of the one, indivisible, sovereign people of the United States. To suppose otherwise would be to suppose that the people of the United States had not been formed into one people according to the principles and logic of the doctrine of natural rights. Yet the Declaration of Independence begins with the most ringing affirmation of those principles the world has ever known.

Harry V. Jaffa

[See alsoNatural law; Social contract; Sover eignty. Related material may be found inConstitutional law; Human rights; andPolitical theory.]