| Rights |
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| Theoretical distinctions |
| Natural and legal rights Claim rights and liberty rights Negative and positive rights Individual and group rights |
| Human rights divisions |
| Three generations Civil and political Economic, social and cultural |
| Rights claimants |
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Animals · Humans |
| Other groups of rights |
| Authors' · Digital · Labor Linguistic · Reproductive |
Natural and legal rights are two types of rights theoretically distinct according to philosophers and political scientists. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable. In contrast, legal rights are those bestowed on to a person by the law of a particular political and legal system, and therefore relative to specific cultures and governments.
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Legal rights may be constitutional, statutory, regulatory, contractual, common-law, or conferred by international human rights law. Legal rights are almost always qualified, whether by implication, by the law which created the right itself or by legal rights held by others. Legal rights can be enforced in courts of law against other who has infringed it. The right may be enforced by a court order or injunction prohibiting the other person or persons from infringing a right, by the awarding of money to compensate the holder of the right. If a person's right to liberty is infringed he or she may bring an action of habeas corpus so that a court can order his or her release. The owner of the copyright in a work may seek monetary compensation against someone who copied the work without permission. A landowner whose land is being used without his or her permission may bring an action for trespass. A worker may sue his or her employer for breach of contract if the employer refuses to pay the employee's wages.
The theory of natural law is closely related to the theory of natural rights. During the Age of Enlightenment, natural law theory challenged 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 some anarchists 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 recognize no difference between the two and regard both as labels for the same thing, 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 Universal Declaration of Human Rights is an important legal instrument enshrining one conception of natural rights into international soft law.
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.
The idea that animals have natural rights is one that has gained the interest of philosophers and legal scholars in the 20th century,[4] and as such, even on a natural rights conception of human rights, the two terms may not be synonymous.
While the existence of legal rights has always been uncontroversial, the idea that certain rights are natural or inalienable also has a long 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.
The Stoics held that no one was a slave by their 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.[5] | ” |
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."[6] 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."[7] Cicero argues in De Legibus that "we are born for Justice, and that right is based, not upon's opinions, but upon Nature."[8]
In Confucian thought, it has traditionally been held that all men are born equal.
Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage"[9] 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.[10] | ” |
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."[11] 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.” However, Hutcheson 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."[12] 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." As 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."[13]
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. But the same would not apply to those aspects that make one a person, wrote Hegel:
| “ | 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.[14] | ” |
Thus 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 be natural rights, independent of positive law. However, many social contract theorists reasoned 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 them from abuse, and living henceforth under the legal rights of that authority.
But 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.[15] The de facto inalienability arguments of the 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.[16] | ” |
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."[17] Price 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.[18] 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.[19] | ” |
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."[20] 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.[21] | ” |
Meanwhile in America, Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important",[22] 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 nineteenth 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." | ” |
Many documents now echo the phrase used in the United States Declaration of Independence. The preamble to the 1948 Universal Declaration of Human Rights asserts 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.[23]
Contemporary political philosophies continuing the liberal tradition of natural rights include libertarianism, anarcho-capitalism and Objectivism, and include amongst their canon the works of authors such as Robert Nozick, Ludwig von Mises, Ayn Rand,[24] and Murray Rothbard.[25] A libertarian view of inalienable rights is laid out in Morris and Linda Tannehill's The Market for Liberty, which claims that a man has a right to ownership over his life and therefore also his property, because he has invested time (i.e. part of his life) in it and thereby made it an extension of his life. However, if he initiates force against and to the detriment of another man, he alienates himself from the right to that part of his life which is required to pay his debt: "Rights are not inalienable, but only the possessor of a right can alienate himself from that right – no one else can take a man's rights from him."[26]
The specific enumeration of legal rights accorded to people has historically differed greatly from one century to the next, and from one regime to the next, but nowadays is normally addressed by the constitutions of the respective nations. The following documents have each played important historical roles in establishing legal rights norms around the world.
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 Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are ... endowed by their Creator with certain unalienable Rights".[30]
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.”[31] 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.
Thomas Hobbes (1588–1679) 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)
According to Hobbes, to deny this right would be absurd, just as it would be absurd to expect that carnivores might reject meat or fish stop swimming. Hobbes sharply distinguished this natural "liberty", from natural "laws" (obligations), 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." (ibid.)
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." (ibid.)
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 rendered insignificant – "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 (1632–1704) was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke was a major social contract thinker. He said that man's natural rights are life, liberty, and property. It was once conventional wisdom that Locke greatly influenced the American Revolutionary War with 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 Jefferson’s use in the Declaration of Independence of the phrase "pursuit of happiness" instead of "property."[32] More recently, the eminent[33] 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.[34][35] 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.[36] This position has also been sustained by Michael Zuckert.[37][38][39]
According to Locke there are three natural rights:
The social contract is a contract between a being or beings of power and their people or followers. The King makes the laws to protect the three natural rights. The people may not agree on the laws, but they have to follow them. The people can be prosecuted and/or killed if they break these laws. If the King does not follow these rules, he can be overthrown.
Thomas Paine (1731–1809) 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 contract 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.
Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability.[40] This concept has been recognized by libertarians as being central to the question of voluntary slavery, which Murray Rothbard dismissed as illegitimate and even self-contradictory.[41] Stephan Kinsella argues that "viewing rights as alienable is perfectly consistent with—indeed, implied by—the libertarian non-aggression principle. Under this principle, only the initiation of force is prohibited; defensive, restitutive, or retaliatory force is not."[42]
The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke, writing in the eighteenth century, 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 Burke and Bentham, the leading American revolutionary scholar James Wilson condemned Burke's view as "tyranny."[43]
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". Critics, however, could argue that use of the word "Creator" signifies that these rights are based on theological principles, and might question which theological principles those are, or why those theological principles should be accepted by people who do not adhere to the religion from which they are derived. The signers did not all, however, share the same religion. 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.
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".
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. For instance, Jonathan Wallace has asserted that there is no basis on which to claim that some rights are natural, and he argued that Hobbes' account of natural rights confuses right with ability (human beings have the ability to seek only their own good and follow their nature in the same way as animals, but this does not imply that they have a right to do so).[44] Wallace advocates a social contract, much like Hobbes and Locke, but does not base it on natural rights:
We are all at a table together, deciding which rules to adopt, free from any vague constraints, half-remembered myths, anonymous patriarchal texts and murky concepts of nature. If I propose something you do not like, tell me why it is not practical, or harms somebody, or is counter to some other useful rule; but don't tell me it offends the universe.
Other critics have argued that the attempt to derive rights from "natural law" or "human nature" is an example of the is-ought problem. However, the term "natural" in "natural rights" refers to the opposite of "artificial", rather than meaning "physical" as it does in the sense of ethical naturalism, which according to G.E. Moore does suffer the is-ought problem in the form of the naturalistic fallacy.
Hugh Gibbons has proposed a descriptive argument based on human biology. He claims 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.[45]
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.[46]
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