Natural Law and Natural Rights
Natural law
transformed into natural rights
The modern conception of natural
law as meaning or implying natural rights was elaborated primarily by
thinkers of the 17th and 18th centuries. The intellectual—and especially the scientific—achievements
of the 17th century (including the materialism of Hobbes, the rationalism
of Descartes and Leibniz, the pantheism of Spinoza, and the
empiricism of Bacon and Locke) encouraged a distinctly
modern belief in natural law and universal order and, during the 18th
century—the so-called Age of Enlightenment, inspired by a growing
confidence in human reason and in the perfectibility of human
affairs—led to the more comprehensive expression of this belief.
Particularly important were the writings of Locke, arguably the most important
natural-law theorist of modern times, and the works of the 18th-century
thinkers known as the philosophes, who, centred mainly in Paris,
included Montesquieu, Voltaire, and Jean-Jacques Rousseau. Locke
argued in detail, mainly in writings associated with the English Glorious
Revolution (1688–89), that certain rights self-evidently pertain to
individuals as human beings (because these rights existed in the hypothetical “state
of nature” before humankind entered civil society); that chief among them are
the rights to life, liberty (freedom from arbitrary rule), and
property; that, upon entering civil society, humankind surrendered to the
state—pursuant to a “social contract”—only the right to enforce these natural
rights and not the rights themselves; and that the state’s failure to secure
these rights gives rise to a right to responsible, popular revolution. The
philosophes, building on Locke and others and embracing many and varied
currents of thought with a common supreme faith in reason, vigorously attacked
religious and scientific dogmatism, intolerance, censorship, and social
and economic restraints. They sought to discover and act upon universally valid
principles governing nature, humanity, and society, including the inalienable
“rights of Man,” which they treated as a fundamental ethical and
social gospel.
John
Locke
John
Locke, oil on canvas by Herman Verelst, 1689; in the
National Portrait Gallery, London.
Not surprisingly,
this liberal intellectual ferment exerted a profound influence
in the Western world of the late 18th and early 19th centuries. Together with
the Glorious Revolution in England and the resulting Bill of Rights, it
provided the rationale for the wave of revolutionary agitation that swept the
West, most notably in North America and France. Thomas Jefferson, who had
studied Locke and Montesquieu, gave poetic eloquence to the plain prose of the
17th century in the Declaration
of Independence proclaimed by the 13 American colonies on July
4, 1776:
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, that among
these are Life, Liberty and the Pursuit of Happiness.
Similarly,
the marquis de
Lafayette, who won the close friendship of George Washington and who
shared the hardships of the American Revolution, imitated the
pronouncements of the English and American revolutions in the Declaration of the Rights of
Man and of the Citizen of August 26, 1789, proclaiming that “men
are born and remain free and equal in rights” and that “the aim of every
political association is the preservation of the natural and imprescriptible
rights of man.”
In sum, the idea of
natural rights, forebear to the contemporary notion of human rights, played a
key role in late 18th- and early 19th-century struggles against political absolutism.
It was, indeed, the failure of rulers to respect the principles of freedom
and equality that was responsible for this development.
“Nonsense
upon stilts”: the critics of natural rights
The idea of natural rights was not without its
detractors, however. In the first place, because it was frequently associated
with religious orthodoxy, the doctrine of natural rights became less attractive
to philosophical and political liberals. Additionally, because they were
conceived in essentially absolutist terms, natural rights were increasingly
considered to conflict with one another. Most importantly, the doctrine of
natural rights came under powerful philosophical and political attack from both
the right and the left.
In England, for example, conservative political
thinkers such as Edmund
Burke and David
Hume united with liberals such as Jeremy Bentham to condemn the doctrine, the former out
of fear that public affirmation of natural rights would lead to social
upheaval, the latter out of concern lest declarations and proclamations of
natural rights substitute for effective legislation. In his Reflections on the Revolution in France (1790), Burke—a believer in
natural law who nonetheless denied that the “rights of Man” could be derived
from it—criticized the drafters of the Declaration of the Rights of Man and of
the Citizen for proclaiming the “monstrous fiction” of human equality, which,
he argued, serves but to inspire “false ideas and vain expectations into men
destined to travel in the obscure walk of laborious life.” Bentham, one of the
founders of utilitarianism, was no less scornful. “Rights,” he wrote,
is the child of law; from real law come real
rights; but from imaginary laws, from “law of nature,” come imaginary
rights.…Natural rights is simple nonsense; natural and imprescriptible rights
(an American phrase)…[is] rhetorical nonsense, nonsense upon stilts.
Agreeing
with Bentham, Hume insisted that natural law and natural rights are
unreal metaphysical phenomena.
This assault upon natural
law and natural rights intensified and broadened during the 19th and early 20th
centuries. John
Stuart Mill, despite his vigorous defense of liberty,
proclaimed that rights ultimately are founded on utility. The German
jurist Friedrich Karl von Savigny, England’s Sir Henry
Maine, and other “historicalist” legal thinkers
emphasized that rights are a function of cultural and environmental variables
unique to particular communities. The English jurist John
Austin argued that the only law is “the command of the sovereign” (a
phrase of Hobbes). And the logical positivists of the early 20th century insisted
that the only truth is that which can be established by verifiable experience
and that therefore ethical pronouncements are not cognitively significant.
By World War I there were scarcely any theorists who would defend the
“rights of Man” along the lines of natural law. Indeed, under the influence of
19th-century German idealism and
parallel expressions of rising European nationalism, there were some—the Marxists, for example—who,
though not rejecting individual rights altogether, maintained that rights, from
whatever source derived, belong to communities or whole societies and nations preeminently.
The persistence of the
notion
Although
the heyday of natural rights proved short, the idea of rights nonetheless
endured. The abolition of slavery, the implementation of factory
legislation, the rise of popular education and trade unionism,
the universal suffrage movement—these and other examples of 19th-century
reformist impulses afford ample evidence that the idea was not to be
extinguished, even if its a priori derivation had
become a matter of general skepticism. But it
was not until the rise and fall of Nazi Germany that the idea of human rights truly came
into its own. Many of the gruesome atrocities committed by the Nazi regime had
been officially authorized by Nazi laws and decrees, and this fact convinced
many that law and morality cannot be grounded in any purely idealist
or utilitarian or other consequentialist doctrine. Certain actions, according
to this view, are absolutely wrong, no matter what the circumstances; human
beings are entitled to simple respect, at least.
Today the vast majority of legal scholars and
philosophers—particularly in the liberal West—agree that every human being has,
at least in theory, some basic rights. Indeed, except for some essentially
isolated late 19th-century and early 20th-century demonstrations of
international humanitarian concern, the last half of the 20th century may
fairly be said to mark the birth of the international as well as the universal
recognition of human rights. In the charter establishing the United Nations, for example, all member states pledged
themselves to take joint and separate action for the achievement of “universal
respect for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.” In
the Universal Declaration of Human Rights, representatives from
many cultures endorsed the rights therein set forth “as a common
standard of achievement for all peoples and all nations.” And in 1976 the
International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the International Covenant on Civil and Political Rights (ICCPR),
each approved by the UN General Assembly in 1966, entered into force and
effect. Together with the Universal Declaration and their
additional protocols, these documents came ultimately to be known as core
elements of the “International Bill of Human Rights.”
To
say that there is widespread acceptance of the principle of human rights is not
to say that there is complete agreement about the nature and scope of such
rights or, indeed, their definition. Among the basic questions that have yet to
receive conclusive answers are the following: whether human rights are to be
viewed as divine, moral, or legal entitlements; whether they are to be
validated by intuition, culture, custom, social contract,
principles of distributive justice, or as prerequisites for happiness or
the achievement of human dignity; whether they are to be understood as
irrevocable or partially revocable; and whether they are to be broad or limited
in number and content. Even when the principle of human rights is accepted, there
are controversies: whether human rights are a way of privileging narrowly
conceived special interests over the common interest; whether they are the
political tools of predominantly progressive elites; whether they are a
stalking horse for Western economic imperialism; and so forth. It is thus
sometimes claimed that there exists no universally agreed upon theory or even
understanding of human rights.