The Natural Right of Natural Right
I think it was Hugo Grotius who commodified natural rights, making them transferable, things to give and receive. But the idea that man is endowed with any rights at all, inalienable or otherwise, is certainly wrong. One can search among his possessions and never find anything of the sort. Everything about my supposed rights depends entirely on the will of those who offered them to me, whether they will uphold or violate them. But they are prone to renege.
I wager that these and other facts caused someone like Bentham to scoff at the idea of natural rights, which he famously said were nonsense on stilts. There are no such things. According to Bentham, all we have, and all we can have, are the piddling legal rights afforded to us by government.
That man is no rights holder ought to convince the natural lawyer to ditch the metaphor of nature or god as legislator and start back at the beginning. Square one: only man can legislate. Only man can confer rights. Man is not a rights holder. Rather, he is a rights giver.
But none of this should lead the natural lawyer to accept an equally absurd idea, that only man in his official form can confer rights. Who gave them this seemingly divine right? Some appeal to tradition might satisfy the positivists.
For the natural lawyer, though, all he can do is what he is prone to do: deduce from the sensible world some abstract notion of human nature and apply it across the board. Surveying the field, it appears that anyone can afford another a right. Any man can make a sort of promise, a speech act, and offer to another a sum of behaviours and activities the latter is allowed to perform without the former intervening. He can guide all subsequent behaviors to respect this promise. Insofar as the natural rights of the individual are coextensive with his desires and power, as Spinoza saidand since these desires and powers are present in all menit is mans natural right to legislate, to confer rights to another man, and to do so with zero regard to his official status. The question left over is whether he ought to do so and what rights he should offer. So far Natural Law has outdone Positive Law in providing us with an answer.
I wager that these and other facts caused someone like Bentham to scoff at the idea of natural rights, which he famously said were nonsense on stilts. There are no such things. According to Bentham, all we have, and all we can have, are the piddling legal rights afforded to us by government.
That man is no rights holder ought to convince the natural lawyer to ditch the metaphor of nature or god as legislator and start back at the beginning. Square one: only man can legislate. Only man can confer rights. Man is not a rights holder. Rather, he is a rights giver.
But none of this should lead the natural lawyer to accept an equally absurd idea, that only man in his official form can confer rights. Who gave them this seemingly divine right? Some appeal to tradition might satisfy the positivists.
For the natural lawyer, though, all he can do is what he is prone to do: deduce from the sensible world some abstract notion of human nature and apply it across the board. Surveying the field, it appears that anyone can afford another a right. Any man can make a sort of promise, a speech act, and offer to another a sum of behaviours and activities the latter is allowed to perform without the former intervening. He can guide all subsequent behaviors to respect this promise. Insofar as the natural rights of the individual are coextensive with his desires and power, as Spinoza saidand since these desires and powers are present in all menit is mans natural right to legislate, to confer rights to another man, and to do so with zero regard to his official status. The question left over is whether he ought to do so and what rights he should offer. So far Natural Law has outdone Positive Law in providing us with an answer.
Comments (43)
I'm not a fan of natural rights, but this argument is ludicrous. One can no less easily "search among his possessions" and find no such thing as his 'will' either.
If you're going to invoke a punishingly strict materialism with regard to vague human concepts, you can't introduce in the same breath 'the will'. I mean, where's that among my possessions?
Willing is an action performed by a thing and not itself a thing. Im not trying to suggest these people carry with them things called wills.
It's not a question of the type of thing it is, it's the fact that the existence of such an 'action' is evidenced by nothing more than that you feel like you have such a thing (or in this case, feel like you've done such a thing).
If you're prepared to accept nothing more than the way something feels to you as evidence for its existence, then one who 'feels like' they have a natural right has precisely the same quality of evidence for its existence.
I dont understand what youre getting at. Perhaps this is because you suspiciously left out the rest of the argument, for some reason terminating it where it cannot be terminated, leaving out clauses which clarified what I meant. When I said that everything about my supposed rights depends entirely on the will of those who offered them to me, I meant whether they will uphold or violate the rights that I supposedly have, as is obvious by what I said.
I wasn't particularly anticipating you would.
I was anticipating the straw-men, quoting out of context, and quibbling. I guess there is no profit in good faith.
The idea of natural rights goes back to the Roman Stoics. It's that nature rewards those who adhere to its ways. Those who pit themselves against nature diminish themselves. The same is true of a society. It's in the nature of a society to protect and nurture its members. If it doesn't do that, it will become sick and potentially pass away.
For the Romans, evil and disease were similar. Health and goodness were the same thing. So it's not that you possess some magical entity, it's just that in order to thrive, you and your society must grow toward the light, so to speak.
Whatever you may think of the idea, it has served humanity well and has become part of the contemporary global worldview. It doesn't appear to be going anywhere, so get used to it?
I believe in natural rights and natural law. I just dont think were born with them. The opposite is the case. They must first be granted and defended.
You're thinking of civil rights.
I think civil rights would fall under legal rights.
Civil rights require a government that is divided against itself so that one portion of the government can defend citizens from mistreatment by the other part.
Natural rights are believed to transcend any government:
"When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
"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.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Declaring their rights to be natural was a strike against the idea that all God given rights flow through a monarch. "God given" and 'natural' mean pretty much the same thing.
Quoting NOS4A2
Quoting US Declaration of Independence
I think your statements that I quoted are completely right and completely wrong. It's true that rights don't enforce themselves. They are not built into the superstructure of the universe like the second law of thermodynamics. But they are built into the moral foundation of our human nature. Saying that certain human rights are unalienable is a statement of human value. It's also a commitment to stand behind those rights for everyone. In order to be fully human, we have to stand up for each other.
Quoting NOS4A2
Quoting frank
The notion of rights is blur. A vicious discourse is always encouraged to promulgate laws without any limitation. Falsely, many people tend to think that more laws on civil rights, more democratic the state. When it is based in other criteria: Obligations and responsibilities.
To be honest, the only real "natural right" is private property and even it is controlled and kidnapped by gubernamental interests.
Sometimes, I think the law makers tend to rule fraudulently with the basic aim to keep us in their selfishness. But hey, look at how many "rights" we have while the government forces me to pay taxes just because I hold a basic ownership.
I like what you said there. Though I do not agree that they are built in to any nature, human or otherwise, they are definitely reasoned from observing human nature.
But I maintain that Natural Rights, like any right, exists only in the heads and mouths of those who are willing to confer them. He observes and reasons about human nature, derives from it a sum of acceptable behaviors, confers the right to perform these behaviors to all people, and endorses and defends them thereby. The whole project of human rights is dependent upon the rights giver, which as already intimated, is everyone.
The more and more people believe in natural law, take it upon themselves to confer rights, the more and more we have natural rights. The less and less people do this, the less and less we have natural rights. At any rate, as soon as the natural lawyer disappears or otherwise stops conferring those rights, the rights are no longer conferred. Weve seen this happen for instance in Germany where legal positivism became the handmaiden to Hitlers power. Had there been some natural lawyers there I wager it would be a different story.
Thats right. The distinction is between so-called natural and positive law. In my mind positive law is circular and dangerous. But natural law is often seen as silly and superstitious, sometimes rightfully so.
Bentham believed a belief in natural rights would lead to anarchy because they contradict the very idea of government. I think hes right on that.
Do you know of any cases of that?
Death and taxes, man. :smile:
This is an incorrect representation of "rights". A right is an equality, therefore a balance. You portray it as something which is completely dependent on the act of giving, thereby denying the balancing part which is the act of taking. So that aspect, whereby human beings assert their rights, claim their rights, and thereby take their rights, you deny by saying "man is not a rights holder". In reality there is a balance between people claiming "these are my rights" and standing up for that, which is a matter of taking, and people saying "those are your rights", allowing you specific unimpeded actions, which is a matter giving.
Unless you portray "rights" as a form of equality, or balance, whether it is "natural rights" or whatever, which you are portraying, it is not a correct portrayal. But since you are portraying rights as something given by human beings, you are not portraying "natural rights" anyway, and the op is improperly named.
I don't disagree with this, but I would put the emphasis differently. Yours is on the tentative nature of rights, their conditionality. Mine is on my judgement that the only way to proceed morally is to act as if it were true. Philosophers do that all the time.
Quoting NOS4A2
Again, a difference in emphasis. It's important that we are committed to the fact that rights to life, liberty, and the pursuit of happiness can be violated, but they can't be taken away.
I have portrayed natural rights as not existing. The behavior of granting rights, natural or otherwise, can exist, as I have already explained.
If the slave can claim his right to freedom, or in the case of natural rights, already has it, why is he in chains? If he can take the right or already has the right, no one neednt afford it to him, and we can just go on with our day without intervening. In any case, when it comes to asserting rights, the slavers right to own the slave has won out over the slaves right to freedom.
Your so-called balance and equality is might makes right. The slaver has the right to own the slave so long as he can claim and take the right. The slave has the right to freedom so long as he can claim the right and make an exit.
Im sure of it in my own case. With each passing day I get closer to it. Lysander Spooner is another.
Im with you on this. My concern is that the whole thing opens itself to a withering criticism, for instance Benthams critique. The project of natural law was never the same since then and with devastating consequences. Perhaps there is a way to reestablish it on better footing.
Do you feel like throwing hand grenades into the Haymarket?
There is a distinction between classical and modern natural rights theories. Fundamental to classical natural rights is duty and obligations to others. Classical natural rights did not include the concept of individual rights. Modern natural rights theories are unnatural in that man is by nature a social or political animal, Liberalism's "state of nature" is a fiction.
Quoting NOS4A2
I suggest you have it backwards. It is not a question of what is given but the problem of what can be taken.The fact that someone can take your life does not mean that you do not have a right to live. The violation of a right does not mean that a right does not exist.
Quoting NOS4A2
If man can confer rights then man can deny rights. Is the choice to do one or the other arbitrary? Is it no more right than wrong to do one or the other?
Some people don't respect the claims that others make. That does not mean that the person is wrong. So if the slaver does not respect the claim of the slave to have a right to freedom, this does not make the slave wrong about this claim.
Quoting NOS4A2
Again this does not hold up logically. That something is done in a particular way, does not produce the conclusion that it is the right way. One's actions do not necessarily display one's rights. If a person lives one's life as a thief, and gets away with it, this does not mean that the person has the right to live that way.
Quoting NOS4A2
Oh, so now you change your tune! You said rights had to be given. I said what is given had to be balanced with what is taken. Now you say rights are taken. Which do you really believe? Or do you really believe like me, that rights are a balance between the two?
When I read your OP, I wanted to push back strongly against the idea that human rights are somehow dispensable, avoidable. That's what my posts in this thread have been about up to this point. I acknowledge I am making a moral judgement. As I noted previously, human rights are not physical properties of the universe. They represent human action and I would say human nature. Rights are commitments, not laws. We act as if they are laws of nature because they are central to our humanity.
I'm not sure why, but Robert Frost's poem "The Black Cottage" came to mind. Here's an excerpt:
Quoting Robert Frost - The Black Cottage
That's good! Thanks.
Another poem came to mind. This is an excerpt from "As If" by Carl Dennis.
Quoting Carl Dennis - As If
If they were recognized and enforceable within a particular legal system then they would be limited by jurisdiction. Natural rights are supposed to be universal, but there is no universal legal system. In any case, natural rights are supposed to precede and transcend legal systems.
I know that's the claim made about them. But a "right" that isn't a legal right is merely what someone believes should be the case. Someone who believes we have the natural right to do X believes that we all should be able to do X, for whatever reasons used to maintain that it is "natural" that we be able to do it. What if we cannot do it (for whatever reason)? In that case, those believing we have such a natural right claim only that we should be able to do it.
Such is the case with legal rights as well. Someone believes they should have a legal right to do X. Rather than appeal to nature, though, they appeal to those in power. The difference is that legislation is designed to let one man or group of men arbitrarily dictate to all other men what they may or may not do, not unlike slavery, which is contrary to natural law.
Legal rights already exist. Why or when they came into existence is another matter. The law is the law, regardless of its merits, regardless of why it became law. One might claim a legal right is a natural right, but whether it is or not is immaterial to its status, its function, its enforceability.
Natural Law, I think, doesn't necessarily entail Natural Rights,although it isn't law, properly speaking. The Roman jurist Ulpian said of slavery that it is "contrary to nature." The ancient Stoics taught we should live "according to nature." Whether Roman jurisprudence accepted what we call "rights" is debatable. Roman citizens had a "right" to appeal to the Emperor (that's what Paul did, not that it did him much good, though it kept him alive for a time). A trial was required in certain cases, so perhaps that may be said to be similar to the "right to trial," but I think it was more a prohibition of certain conduct than a positive right, e.g. a citizen cannot be punished with death until a trial is held doesn't mean that he has a "right" to trial.
The ancient Stoics, as far as I know, never spoke of the "rights" of individuals. Instead, their ethics focused on proper conduct, virtuous conduct "according to nature." So, e.g., we shouldn't steal not because there is a right to private property, but because coveting and taking someone's property isn't virtuous--such things aren't important to the Stoic Sage.
Was this "act" a violation? If it was a violation, what was it a violation of?
If I asked if it were moral to murder, would it be relevant to your analysis whether an ancient civilization found it moral? That is, why is it important to review now rejected concepts?
Rejected? This may be an accurate reflection of your opinion but does not reflect what is going on in political think tanks and academic research.
The people in that nation might be appalled that Americans let women with children languish in poverty, working multiple jobs trying to make ends meet until they end up in the emergency room with pneumonia, panicking because they can't stay home in bed. Is this neglect a violation?
The question ends up depending on what sort of foundation you put under your morality. How do you look at that?
Are you asking me?
The law in effect wasn't violated, clearly. But no non-legal right must be violated in order for an act to be immoral. The rape was reprehensible regardless of any right or law.
Something makes rape wrong. Whatever that is, we call it X.
1. Under both positive and natural law, it is a violation of X to rape.
2. Under positive law, X is the law of the legislature.
3. Under natural law, X is the law of morality.
If we changed the word "law" in #3 to "rules" or "theory" we'd have no disagreement. The quibble is over the term "law."
Is this a correct summation?
I think so. It seems I'm a legal positivist. I think the use of the words "law" and "rights" result in confusion, and the law is distinct from morality. I favor legal rights as I think they serve to put limits on governmental power. But rights which aren't legal rights are what people think should be legal rights if they're not already.
I favor virtue ethics and other ethics which aren't based on concepts of individual rights. People claim so many rights.
The words do cause confusion. The idea that nature or God confers rights is untenable. Only men confer rights. As a play on words, it is mans natural right to confer rights; or in Spinozas terms, conferring rights is coextensive with his desires and powers.
But if this is the case, the idea that man can only confer rights or develop laws so long as he does so in some official form is equally untenable. Who gave them the right to do so? Neither God nor Nature, of course. But if positive law gives positive law the right to develop laws then my law gives me the right to eschew them. Positive law is ungrounded. It can appeal only to its own tradition, not unlike the Bible.
This is why the Nuremberg trials appealed to natural law and human rights, for instance. The Nazis were following the law, such as they were. Of what are they guilty? Of not being virtuous enough?
It is the case that we confer rights based on principles developed through a general understanding of universal human nature, whatever that may be. Some positive laws, too, have developed from this understanding.
Another option is to regard certain rights as inherent. No one confers on us the right to not be murdered or enslaved.
But rights are not boundary markers separating us off. We are bound together in the recognition and protection of our rights.