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What is natural about Natural Rights?
Do Natural Rights exist? Michael Birshan investigates one of the more persistent political assertions of the modern world in this prize-winning essay.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness…”
Thomas Jefferson, US Declaration of Independence, 1776
It is clear that Jefferson along with the other Founding Fathers believed that – in addition to all man-made rights – there is a body of rights which were not the progeny of civilisation and which have always existed and will always exist. These are the Natural Rights. They, as Tom Paine says, “appertain to man in right of his Existence.”1 Simply by being a human, one possesses these inalienable and immutable rights – regardless of the government, religion, or ethical system under which one lives.
There is, of course, another view: that there is nothing ‘natural’ about Natural Rights. Supporters of this stance include Bentham, Burke, Mill, Nietzsche, and (sometimes) Rousseau. Bentham is the most passionate of these opponents of Natural Rights, expressing a view that is as unequivocal as it is absolute:
Natural rights is simple nonsense: natural and imprescriptable rights, rhetorical nonsense – nonsense upon stilts.
Jeremy Bentham, Anarchical Fallacies
Before one can support either of these diametrically antagonistic views or, indeed, propose a synthetic position, one must understand the essence of rights. Rights are founded on ethical value judgements, which may be empirical or rational. A right is that which confers legitimacy upon an action or a belief. For example, if one has a right to free speech, the act of speaking freely is given legitimacy. This legitimacy derives from whichever authority conferred the right in question. For example, when the British government signed the United Nations Universal Declaration of Human Rights, they conferred upon British citizens the right to “life, liberty and security of person”2 (among much else). A right is different from a law of nature because a right is a protected option not a diktat. A right to life does not mean that one will live, it means that one’s life is protected. However, a law of nature is only a law of nature because it is a diktat and is always true. Hence, E cannot have a right to equal mc2 since it always does.
Furthermore, since rights are based on moral value-judgements they cannot be the same as factual scientific laws. Molecules have no morality.
From these basic foundations, one can derive three main principles that govern a system of rights. Firstly, a later right cannot contradict an earlier one (assuming both are granted by the same authority) unless that earlier right has been explicitly repudiated. For example, if a state confers upon its citizens a right to freedom from torture, then it cannot confer a right to torture upon its Secret Service – the earlier right stops the later one having legitimacy.
Secondly, a right can only be conferred on a body by another body of greater authority or by that body itself. For example, a Supreme Being can confer rights on mankind but mankind can also confer rights upon itself. A lower authority cannot confer a right which contradicts a right conferred by a higher authority. For example, a trade union cannot confer a right to strike on its members if the government has conferred a right to freedom from strikes on its citizens. Whilst, as mentioned earlier, rights can be conferred by a body on itself, they cannot be conferred by one body on another of equal authority. For example, Malaysia can confer a right to life on its own citizens but it cannot confer one on those of Myanmar since both Malaysia and Myanmar are nation-states and hence equal in authority. Furthermore, Malaysia and the Philippines cannot together confer rights on Myanmar because, although one group contains two nation-states and the other only one, nevertheless both groups remain equal in authority – having no more or less authority than that possessed by nation-states. A collection of hundreds of bodies can be overruled by one body with greater authority. For example, a Supreme Being could overrule the whole human population, even though He is one and they are billions.
Thirdly, authority can be ceded. For example, the governments of all members of the European Union have ceded their ultimate authority over all social legislation that affects their citizens. Hence, through the Social Chapter, rights may now be legitimately conferred on their citizens by the European Union since, in the area of social legislation, it is now a higher authority than the national governments.
These three principles are fine in theory, but in practice they throw up a multitude of problems. Whilst it is difficult to dispute that a higher authority can confer rights on a lower authority, it is quite easy to dispute that the European Union is a higher authority than the nation-states of which it is comprised. Furthermore, it is debatable whether the ceding of authority in some cases is permanent – does Britain have the right to withdraw from the European Union as some arch Euro-sceptics wish or has the British Parliament lost some of its sovereignty forever? If so, did it have the right to cede that authority without direct consultation of citizens in a referendum? More fundamentally, is it correct to take such an anthropocentric views of rights? Do animals, plants, or the earth itself have rights? Do these rights have to be conferred by human authorities? If not, what other authorities could confer them?
All these practical questions and problems severely hamper a system of rights, but perhaps if one could demonstrate that there were certain seminal ‘Natural Rights’, then some structure or hierarchy of rights could be built around them. Jefferson mentions one possible group of Natural Rights when he says that men “are endowed by their Creator with certain inalienable Rights”3. As mentioned earlier, rights can be conferred by a higher authority on a lower one and so it follows that a Supreme Being may confer rights on humanity or indeed the world and these will be Natural Rights.
Consequently, one must attempt to prove the existence of a Supreme Being because unless He exists or at least has existed, then there is not the slightest possibility of His conferring rights. In the history of philosophy, there have been numerous attempts to prove His existence, usually based on one of three arguments. The first is the argument from design which was stated, and then comprehensively rebutted by Hume in his Dialogues on Natural Religion. The second is the cosmological or causal argument propounded by Aristotle, Maimonides, and Aquinas in Summa Theologica, which asserts the idea of God as the First Cause. Strong criticisms of this argument were levelled by Hume in the Dialogues on Natural Religion and Kant in his Critique of Pure Reason. The third famous argument was the ontological argument offered by Anselm, by Spinoza in Ethics, and by Descartes in Meditations with refutation coming from Gaunilo, Kant, and, ironically, Aquinas. To examine the individual merits of these arguments is beyond the scope of this essay. However, the fact remains that very strong, and many would say conclusive, rebuttals have been made of these arguments. Perhaps this is because a Supreme Being does not exist or perhaps it is because comprehension of His nature is beyond the capabilities of human minds. Either way, it seems likely that one cannot prove the existence of a Supreme Being and hence one cannot prove the foundation of divinely ordained Natural Rights.
There are further objections why one cannot accept that Natural Rights have been conferred by a Supreme Being. The most important is the fact that, even supposing one can know for certain of the existence of a Supreme Being, that does not imply that He will have instituted a system of rights. It is the Judaeo-Christian tradition that asserts that God has set down irrefutable commandments and conferred irrefutable rights. The essence, however, of Judaism and Christianity is that one is given free will so that one can choose to obey or disobey God’s laws, based on the strength of one’s faith. If God conclusively revealed his existence, then everyone would obey His laws because they knew God existed rather than believed He did. Hence, it is likely that if a Supreme Being exists approximating to the Judaeo-Christian model, then he will have ensured that His existence cannot be proven by rational arguments so as to preserve the necessity of people making leaps of faith. Therefore, one reaches the conclusion that the Supreme Being conventionally associated with conferring Natural Rights – that is, the Judaeo-Christian ‘God’ – is, if He exists, likely to have arranged it so that one can never be sure He, his authority, or His Natural Rights actually exist.
None of this categorically disproves the existence of a Supreme Being but it makes it unlikely that one can prove the existence of Natural Rights from a theological perspective. It remains very difficult to prove a Supreme Being exists and it remains even more difficult to prove He endowed the universe with Natural Rights.
Other than from a Supreme Being, Natural Rights can only be conferred by two other sources. The first is another higher authority and the second is humanity itself. Whilst it can be disputed whether man is higher than the animals or merely equal with them, it cannot be disputed that the whole natural world is superior to humanity, which is only one part of it. Hence, Natural Rights may be conferred by ‘Nature’ herself – an idea implied by the term ‘Natural Rights’. Before proceeding, it is important to understand exactly what is meant by ‘Nature’. It is simply the whole universe, excluding any Supreme Beings that might exist. Nature is this self-perpetuating construct that can never be destroyed, except by a supra- Natural Supreme Being. Hence, in order to discover whether Natural Rights have been conferred by Nature, one must ask if there is anything that can be deduced from the workings of Nature that indicates a morality? Aristotle argues in Book 1 of Politics that “Nature does nothing in vain”4 and few would doubt that there is order in Nature. This does not, however, imply that there is a morality or ethical structure within the natural world. Nature certainly works in accordance with the laws of natural science but, as was demonstrated earlier, scientific laws cannot be equated with rights. Nature must have morality to be able to confer rights.
Darwin in The Descent of Man and On the Origin of Species proposes and produces empirical evidence to support the claim that the natural world is based on survival of the fittest through Natural Selection. This suggests that the natural world is entirely amoral and that the only inherent and fundamental – that is, Natural – principle is that of survival. Obviously, Darwin’s work is only theory based on fact and not fact itself. This implies that, just as with a Supreme Being, it is exceedingly difficult to prove that Nature is essentially amoral. However, if one accepts what is currently the most likely explanation of the facts, then it implies that the natural world cannot have conferred any Natural Rights except, arguably, a right to survive. This is arguable because whilst it is true that the natural world enshrines the desire to survive in its structure, it is difficult to claim that the natural world did so based on a moral or ethical valuejudgement. Nature is a only quasiliving organism which, although containing sentient life within it, is not truly sentient itself.
The third authority that could confer Natural Rights is humanity itself. However, if these are to be ‘Natural’ Rights, then they must be directly derived from some quality of mankind – “appertain to man in right of his Existence”5 – rather than derive from conscious and consensual discussion. Consequently, one must determine whether there is any quality inherent in humanity that can be a foundation for a Natural Right. It can be argued that all people share a common humanity and, if this premise were accepted, one could claim that, therefore, equality of opportunity, equality before the law, even equality of income are Natural Rights. This, however, proves problematic because the premise is highly dubious. What is this ‘common humanity’? Man shares some common characteristics with plants, but more with animals, more still with humans, yet more with his race, and yet more still with his family. Why, therefore, should Natural Rights be based upon similarities between men? Why should they not be based upon the similarities between all living organisms, or between all members of a family? The great problem is who decides where to draw the line. If man draws the line, then the rights are no longer Natural as they are not based on inherent qualities of mankind, rather on a conscious decision of mankind.
This provides strong support for the position that there is no reason why mankind should be afforded a special system of rights based on common humanity. A strong refutation to this position exists: rights, as mentioned earlier, are based on moral judgements and only humans have the sentience to make moral judgements. But this rebuttal could itself be criticised: some scientists claim that creatures such as apes and dolphins are possessed of enough sentience to make simple moral judgements. (Indeed, a rather unconventional group of scientists does actually call for the UN Universal Declaration to be extended to apes, chimpanzees, and orangutans.) Furthermore, what of children or the mentally deficient who are not able to make moral judgements? By this rationale, they are excluded from the sphere of Natural Rights. Whilst it could be argued that children should be included because they will develop morality, the mentally deficient must remain outside. This position could easily lead to the extermination of the mentally disabled as happened in Nazi Germany or the forced sterilisation and eugenics programmes practised in post-war Sweden. Moreover, if one is arguing that man can have Natural Rights because of his sentience, then one can question whether only those of sufficient intelligence and education to reason thoroughly fall within the sphere of Natural Rights. As with common characteristics, so with sentience – it is very difficult to know where to draw the line, and if man has actively to decide, then the rights cannot be Natural.
Hence, there are major problems with a system of Natural Rights conferred by humanity upon itself because one cannot define the boundaries of sentient and moral humanity and, if it requires well-developed cognitive faculties, then major chunks of what is conventionally considered ‘humanity’ would be excluded. Moreover, the natural world is a superior authority to humanity, which is only part of the natural world, and one could therefore argue that the amoral constitution of Nature precludes any Natural Rights – other than those that could be conferred by the Supreme Being.
Hence, one must conclude that there is no proof that there is anything ‘natural’ – that is, immutable, fundamental or innate – about ‘Natural Rights’. It is plausible that there is a system of Natural Rights instituted by a Supreme Being but it is much less plausible that man could ever discover them through rational reasoning. It is likely, although not certain, that no Natural Rights other than perhaps the right to survive can be derived from Nature. It is plausible, although not likely, that rights to equality can be derived from a common humanity but their purvey would certainly exclude much of conventional humanity. Hence, the large majority of the evidence suggests that there is nothing ‘natural’ about ‘Natural Rights’ but does not prove it.
This conclusion may, ironically, lead to several Natural Rights. Bertrand Russell, in The Problems of Philosophy, says “… it must be admitted that we can never prove the existence of things other than ourselves and our experiences. No logical absurdity results from the hypothesis that the world consists of myself and my thoughts and feelings and sensations, and that everything else is mere fancy.”6 If one cannot either prove or disprove the existence of Natural Rights, a conclusion both Russell and this essay reach, then arguably one must respect someone’s opinion even if one thinks it is profoundly wrong. This would make the right to free speech, the right to free thought, and the right to have one’s opinions respected into Natural Rights. However, certain opinions are more likely to be true than others. One cannot know whether the sun will rise tomorrow but the opinion that it will is more likely to be true than the opinion that it will not. Consequently, it is unreasonable to claim that there is a Natural Right to have opinions respected. After all, madness could be claimed simply to be a minority opinion – and few would suggest the rantings of madmen should become respected beliefs.
The Natural Rights to free speech and free thought are more difficult to refute. However, some opinions are more likely to be true than others and an opinion is often considered very dangerous if one looks at it from the perspective of another opinion which one has accepted as fact. For example, the opinion that private profit is good is seen as very dangerous if one believes in communism. Hence, from a communist standpoint, having a Natural Right to free speech and thought is dangerous to the whole system. A Natural Right to free speech or thought cannot exist because some thoughts preclude the legitimacy of other thoughts. It would be impossibly circular to have a Natural Right of free thought, which allowed for totalitarian thoughts, which did not allow for free thoughts.
Hence, one must conclude that it is likely there is nothing ‘natural’ about ‘Natural Rights’ but there may be, and if there are any Natural Rights then the most natural of these is the right to survive.
Right… is the child of law: from real laws come real rights; but from imaginary laws, from laws of nature, fancied and invented by poets, rhetoricians, and dealers in moral and intellectual poisons, come imaginary rights, a bastard brood of monsters.
Jeremy Bentham, Anarchical Fallacies
1 The Rights of Man, Tom Paine (ed. J. dos Passos), 1940: p.110.
2 UN Universal Declaration of Human Rights, 1948: article 3.
3 US Declaration of Independence, Thomas Jefferson, 1776.
4 Politics, Aristotle: Book 1, 1256b 20 21.
5 The Rights of Man, Tom Paine (ed. J. dos Passos), 1940: p.110.
6 The Problems of Philosophy, Bertrand Russell, 1912: ch.2, p.10.
© Michael Birshan 1998
Michael Birshan finished at St Paul’s School this year and has an offer to read PPE at Balliol College, Oxford. This essay was the winner of this year’s Ralph Blumenau philosophy prize.
Jeremy Bentham (1748 – 1832)
Jeremy Bentham was a leading figure in British intellecutal life in the early 19th Century. Instrumental in reforming the English legal system, he was also involved in designing effective prisons, in founding University College London, in educating the young John Stuart Mill and in developing Utilitarianism as an ethical system. His dedication to Utilitarianism (“act in such a way as to bring the greatest happiness to the greatest number of people”) led him to develop a ‘felicific calculus’ so one could calculate exactly – to the nearest util – how happy people were and how happy one’s actions could make them. Alas the project proved tougher than expected and the quantitative measurement of happiness still eludes us.