Natural rights are perceived as the inherent and original rights of human nature, which equally belong to all men without exception, and which are possessed solely because of their human condition. They are held to stem from a concept of natural law, whatever definition may be attributed to the term. The theory of natural law and natural rights of man is, however, an obscure one. It seems a strange law, which is unwritten, has never been enacted, may even be observed without penalty, and imposes peculiar rights which are entitled prior to all specific claims within an organised society. It may be just an example of ‘social mythology’, but such an idea is still intriguing. For, to disregard it completely is to deny all its evident psychological, political and legal effects, and to adopt it fully is to be blind to man’s own imperfections. “That men are entitled to make certain claims by virtue simply of their common humanity has been equally passionately defended and vehemently denied.[ [1] ]
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H. L. A. Hart once asserted that “if there are any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free.”[ [2] ] And the proposition that all men have natural rights or rights as human beings is found explicitly in the theories of Thomas Aquinas and John Locke, implicitly in the moral and political philosophy of Immanuel Kant, and at least problematic in the writings of Thomas Hobbes. At the level of practise, it is expressed not only in the rhetoric but in the constitutional innovations of the American and French Revolutions, stating that “the end in view of every political association is the preservation of the natural and imprescriptable rights of man.”[ [3] ] When the ordinary citizen acts as a living and protesting individual, challenging the dictates of existing governments when and if he finds them oppressive, he is appealing to the very same values of freedom and equality among men, and in which social differences simply vanish, leaving the solitary individual with his essential human nature.
Both conservative and socialist thinkers, however, have attempted to deny such claims, and instead assert the interests of the community as more important than those of the individual. As Karl Marx would put it, “none of the so-called rights of man goes beyond egoistic man,… an individual withdrawn behind his private interests and whims and separated from the community.”[ [4] ] The same idea and the same controversies have dominated political debates in the twentieth century regarding governmental practises. The importance of a person’s rights to individuality and freedom from interference is central to the moral and political theories of such subjectivist thinkers as J. L. Mackie and David Hume. However, by no one has the theory of natural rights ever been properly justified or denied, or at least not as it has been defined and debated.
Questions are then posed as to, why people should suppose that they have natural rights independent of the laws and governments of any existing society? If, for example, the laws of a society condemn a human being to slavery, how would his claim (if any) that freedom is a natural right of man be justified? And, if it could be said that there is an essential aspect of human nature which determines man’s free status, a natural law which applies to all men, something in man which governs the relations of human beings independently of the laws of all particular societies, how can such natural facts be discovered if they have never been confirmed by observation? The answer may be contained in the proposition that man uniquely possesses the powers of reason. Thus, Roman lawyers, who were not the first to discuss natural law or natural rights, but the first to posit the theory defensibly, conceived of it as “an ideal or standard, not yet completely exemplified in any existing legal code, but also as a standard fixed by nature to be discovered and gradually applied by men.”[ [5] ] It is a standard not created or conferred by man’s voluntary action, but by nature, or God, and which all men have if they are capable of rational choice.
According to Thomas Hobbes, the state of nature in which man lived before the social contract was “a war of every Man against every Man,”[ [6] ] a condition of internecine strife in which the life of man was “solitary, poor, nasty, brutish and short.”[ [7] ] Thomas Hobbes believed that self-preservation was the great lesson of natural law and that law and government would become necessary as a means of promoting order and personal security. “For each citizen to preserve his own life, he must give absolute and unconditional obedience to the law.” Hobbes’ political theory is best understood if separate in two parts: his theory of Human Motivation, Psychological Egoism, and his theory of the Social Contract. The direction of this assessment will look exclusively to Hobbe’s theory of Social Contract. The social contract is used by Hobbes in defense of absolutism and is thus used to justify authoritarian government. Hobbe’s own goal was to rule out the legitimacy of civil rebellion and thus to eliminate the possibility of civil war, which he regarded as the greatest of evils. Hobbes informs us that we should infer the characteristics of political obligation from “the intention of him that submitteth himself to his power, which is to be understood by the end for which he so submitteth.”[ [8] ]
The use of a social contract to construct a natural rights doctrine is articulated most fully in the writings of John Locke.[ [9] ] To Locke the state of nature that preceded the social contract was not, as conceived by Hobbes, one of brutal horror, but rather a golden age, an Eden before the Fall.
In the ‘state of nature’, men have the right to freedom from interference by others and in turn a correlative duty to refrain from interfering in the life of others. However, at the same time, “all men may be restrained from invading others’ rights, and from doing hurt to one another”, the execution of the law of nature and preservation of individual natural rights is “put into every man’s hands, whereby everyone has a right to punish the transgressors of that law to such degree, as may hinder its violation.”[ [10] ] Men have an obligation to preserve to the best of their ability the life, liberty and property to which others also have natural rights, as long as “his own preservation comes not in competition.”[ [11] ]
In moving from the ‘state of nature’ to that of civil society, man carries with him the natural rights and some of the authority he had in that state of autonomy. There are certain powers, however, that man gives up in subjecting himself to civil authority. He gives up that power he had to do whatever he sees fit for the preservation of his life, since this power is “to be regulated by the laws made by society”. Man therefore signs a social contract, surrendering “the power of punishing”, which is “to be so far disposed of by the legislative, as the good of society shall require.” But he never surrenders his rights, and thus government “is obliged to secure everyone’s property [liberty, life and possessions], by providing against those… defects… that made the state of nature so unsafe and uneasy.”[ [12] ] Man did not enter society to become worse than he was before, but only to have his natural rights better secured.
When social contract theorists talk of the rights which men enjoyed in the ‘state of nature’, they are in effect saying what men ought to enjoy in any society, that all men ought to be free, independent of their social condition. Words like freedom and equality represented for the advocates of natural rights what they considered to be the fundamental moral and social values, which should be realised in any society of rational citizens. These values, and hence natural rights, in the social contract, are the basis for rights embedded in the clauses of constitutions. The fundamental purpose of law is therefore considered to be the protection of individual rights. In reality, however, positive laws of society are somewhat imperfect. Until a law was enacted in order to abolish slavery, slaves ought to have been free but clearly were not. Even though man seemed to be entitled by nature to natural rights, which might be denied to him by the positive laws of existing societies, the natural law and natural rights were impotent.
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The Social Contract approach to natural law culminated in the writing of Jean-Jacques Rousseau. As Barker has noted: “Rousseau is a Janus-like figure in the history of natural law. He turns to it and belongs to it, he turns away from it and it belongs elsewhere.”[ [13] ] There are two distinct social contract theories by Rousseau. The first one is, Discourse on the Origin and Foundations of Inequality Among Men, usually referred to as the Second Discourse, and is a relation of the moral and political evolution of human beings over time, from a State of Nature to modern society. As such it contains his naturalized description of the social contract, which he sees as very problematic. The second is his normative or idealized theory of the social contract, and is meant to provide the means by which to lighten the problems that modern society has created for us, as laid out in the Second Discourse.
Rousseau’s idea of a state of nature is closer to Locke’s than Hobbes’, though without Locke’s emphasis on the sanctity of property. Rousseau, the social contract is a mystical construct by which the individual merges into the community and becomes part of the “general will.” Preferably the people should govern themselves. But, as he acknowledged, “it is unimaginable that the people should remain continually assembled to devote their time to public affairs.”[ [14] ] Law is “the register of general will.” Government can only be tolerated so long as it accurately reflects the general will. On the other hand, Rousseau insists that whoever refuses to obey the general will shall be compelled to do so by the whole body: “he will be forced to be free.”[ [15] ] What Rousseau is saying is that disobedience is morally illegitimate because it constitutes a failure to discharge a moral obligation a citizen incurred when acting as a citizen. Rousseau is, however, refusing to draw a distinction between law and morality: the general will is the “moral will” of each citizen.
Rousseau’s social contract theories outline a single, consistent view of our moral and political situation. We are gifted with freedom and equality by nature, but our nature has been contaminated by our contingent social history. We can overcome this sleaze, however, by calling upon our free will to reconstitute ourselves politically, along strongly democratic principles, which is good for us, both individually and collectively. [ [16] ]
If morality is not to be discovered but to be made, one may say that there are no real natural rights as described above by Locke’s theories. Natural events cannot tell us what we ought to do until we have made certain decisions. Whether moved by reason or sentiment, or both, standards of behaviour are determined by human choice, not set by nature independently of men.
And no man can have any ‘valid’ rights in the absence of a society. That is not to argue in favour of the communitarian point of view that there can be no individual rights but it is to assert that human beings need one another in order to fully exercise all their rights. One may say that someone has the right to life only because someone else might have the power to kill him. For, if there were no else in the universe, there would be no need for protection, there would be no need for rights. Human beings can only vindicate their rights in relation to others, for human beings can only live in relation to others.
It can thus be concluded that (human) rights are the product of social conditions, of man’s general desire for harmonious relations and his instinct of self-preservation in a community of different and often conflicting interests. Hence, neither can there be no natural rights, as understood to be ordained by God, or, as many libertarians would defend, to be discovered by reason. Rather, men’s own imperfections have made individual rights a natural quality of human beings. If they are thought to originate outside of human nature and interactions, natural rights are defiable; but nonetheless, in day-to-day life, we simply assume that we have these human rights. It may be a product of human imagination, and it probably is but we like to think that they are real.
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