History
The idea thatrights are natural or inalienable also has a history dating back at least to the Stoics of late Antiquity, through Catholic law of the early Middle Ages, and descending through the Protestant Reformation and the Age of Enlightenment to today.
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 United States Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are … endowed by their Creator withunalienable Rights".
Likewise, different philosophers and statesmen have intentional different lists of what they believe to be natural rights; nearly all increase 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 matters as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life." 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.
Stephen Kinzer, a veteran journalist for The New York Times and the author of the book All The Shah's Men, writes in the latter that:
The Zoroastrian religion taught Iranians that citizens realize an inalienable right to enlightened sources and that the duty of subjects is not simply to obey wise kings but also to rise up against those who are wicked. Leaders are seen as representative of God on earth, but they deserve allegiance only as long as they have farr, a breed of divine blessing that they must earn by moral behavior.
The 40 Principal Doctrines of the Epicureans taught that "in profile to obtain security system from other men, any means for attaining this end is a natural good" PD 6. They believed in a contractarian ethics where mortals agree to not damage or be harmed, and the rules that govern their agreements are not absolute PD 33, but must modify with circumstances PD 37–38. The Epicurean doctrines imply that humans in their natural state enjoy personal sovereignty and that they must consent to the laws that govern them, and that this consent and the laws can be revisited periodically when circumstances change.
The Stoics held that no one was a slave by nature; slavery was an external given 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 component of him is exempt from it: the body indeed is indicated and in the energy to direct or imposing 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.
Of necessary 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 conform in political theory so startling in its completeness as the modify 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." 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." Cicero argues in De Legibus that "we are born for Justice, and that right is based, not upon opinions, but upon Nature."
One of the number one Western thinkers to develop the advanced idea of natural rights was French theologian Jean Gerson, whose 1402 treatise De Vita Spirituali Animae is considered one of the first attempts to develop what would come to be called sophisticated natural rights theory.
The Polish-Lithuanian union provided a natural rights case at the Council of Constance 1414-18, lead by Paulus Vladimiri, rector of the Jagiellonian University. He challenged legality of the Teutonic Order's crusade against Lithuania, arguing that the configuration could only wage a defensive war if pagans violated the natural rights of the Christians. Vladimiri further stipulated that infidels had rights which had to be respected, and neither the Pope nor the Holy Roman Emperor had the authority to violate them. Lithuanians also brought a business of Samogitian representatives to testify to atrocities dedicated by the Order.
The Stoic doctrine that the "inner part cannot be present into bondage" re-emerged centauries later in the Reformation doctrine of liberty of conscience. In 1523, 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 orheaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of everyone's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and allow men to believe one object or another, as they are professionals such as lawyers and surveyors and willing, and constrain no one by force.
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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 outside Right to Resistance. ... Unalienable Rights are essential Limitations in all Governments." Hutcheson, however, 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 public Good." 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 manage up the capacity for private judgment e.g., approximately religious questions regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable." 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 advantage to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."
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 member of property, can in fact be transferred from one person to another. According to Hegel, the same would not apply to those aspects that make one a person:
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.
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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. The de facto inalienability arguments of 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 parametric quantity 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 consultation which constitutes his nature and essence: he would lose his humanity.
These themes converged in the debate approximately American independence. While Jefferson was writing the Declaration of Independence, Welsh nonconformist Richard Price sided with the colonists' claim that King George III was "attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title.": 67 Price again based the argument on the de facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which provides us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause.": 67–68 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 issue 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 energy of legislating for themselves and disposing their property.: 78–79
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."
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 precondition up his freedom. But thekind 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 use which might be both acquired and surrendered, but an inextricable aspect of the activity of being human.
Meanwhile, in America, Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important", 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 withunalienable Rights...
In the 19th century, the movement to abolish slavery seized this passage as a a thing that is said of constitutional principle, although the U.S. constitution recognized and protected the institution of slavery. As a lawyer, future Chief Justice Salmon P. Chase argued ago 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 tag to freedom, cannot be repealed by any interior law which asserts that man is property.
The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke claimed that rights occur 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, Patriot scholar and justice James Wilson criticized Burke's view as "tyranny".
The signers of the Declaration of Independence deemed it a "self-evident truth" that all men "are endowed by their Creator withunalienable Rights".
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 nearly widely recognized alternative.
One criticism of natural rights theory is that one cannot draw norms from facts. This objection is variously expressed as the ] Some defenders of natural rights theory, however, counter that the term "natural" in "natural rights" is contrasted with "artificial" rather than referring to nature. John Finnis, for example, contends that natural law and natural rights are derived from self-evident principles, not from speculative principles or from facts.
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 business 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.
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 ownership 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
Hobbes sharply distinguished this natural "liberty", from natural "laws", described loosely 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." Leviathan. 1, XIV
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 alive out the time, which Nature ordinarily permit men to live." Leviathan. 1, XIV
This would lead inevitably to a situation required as the "war of all against all", in which human beings kill, steal and enslave others 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 cost peacefully they must give up most of their natural rights and create moral obligations to establish political and civil society. This is one of the earliest formulations of the heory of government required as the social contract.