A note on natural rights

The idea of a human being having rights independent of his civil sta­tus has a complicated history going back to the idea of natural law in Latin Christendom and its roots in readings of Roman law.

In his historical account of natural rights, Richard Tuck⁴ employs a distinction, familiar to modern legal philosophy, between an active right (that is, inhering in the individual irrespective of his or her social relation­ships) and a passive right (that is, one that entails and is entailed by duties on other people). Only theories that use the former regard the idea of lib­erty as central. The essence of the human is quite different in the two cases—sovereignty in the one and dependence on a network of obligations in the other. The idea of a precivil state of nature, one in which man dis­plays his natural rights independently of social and political institutions, fits more comfortably with theories using the notion of active right.

Medieval jurists talked about “property rights” in a state of nature,. but they tended to do so in terms of claims, a notion that implied that every right entailed a reciprocal duty in accordance with objective (because divinely given) criteria.⁵ In the later Middle Ages, however, the idea was in­troduced that a property right was any right that could be held against all other men, and that could be freely transferred by its possessor. In the six­teenth century there developed a debate between those for whom liberty it­self was property (something owned), and therefore alienable in the same way and under the same terms as any other property; and those (like the Dominicans, for whom the welfare of humans rather than their essential liberty was what mattered) who held that liberty was not in that sense a property.

4. Richard Tuck, Natural Rights Theories: Their Origin and Development, Cambridge: Cambridge University Press, 1979.

5.1 am simplifying a fascinating debate between Franciscans (who sought to restore apostolic poverty) and Dominicans (of whom Aquinas was the most fa- hious) on property as a natural right, because this is peripheral to the theme I pur­sue here.

6. Tuck points out that “this is a recurrent, perhaps the recurrent theme in the history of rights theories” (Tuck, p. 49).

Redeeming the “Human” Through Human Rights 131

It was no accident that the beginnings of modern rights theories are to be found in Portugal and the Netherlands, the main centers of the slave trade at that time. Thus according to the Portuguese theologian Molina, liberty as property could be traded. Man was pictured as a free being, ca­pable of making his own economic and moral decisions, and of being bound by their consequences. Paradoxically, this picture of the individual as sovereign could be made to yield a defense of slavery and of absolutism. Similarly, Grotius’s famous desire for peace was articulated through his rights theory: in the state of nature, man possessed active rights and the moral capacity to enter freely into contracts with others regarding his property. (The obligation to keep one’s promise is a function of natural reason; it does not depend on prior divine law or social relations.) Even in the stage of civilization, conflicts between sovereign states and between sovereign individuals were caused by disputes over rights—the rights of the former and those of the latter being regarded as homologous, differing only in quantity.^[88]

A major theme in the seventeenth-century debates about natural rights had to do with obligation, a concept that was typically linked to pun­ishment. For as John Selden, an English follower of Grotius, put it, “The idea of a law carrying obligation irrespective of any punishment annexed to the violation of it...

It was Hobbes who famously merged the idea of supernatural pun­ishment with the idea that all punishment was in a crucial sense natural·. “Having thus briefly spoken of the natural kingdom of God, and his nat­ural laws, I will add only to this chapter a short declaration of his natural punishments. There is no action of man in this life, that is not the begin­ning of so long a chain of consequences, as no human providence is high enough, to give a man a prospect to the end. And in this chain; there are linked together both pleasing and unpleasing events; in such a manner, as he that will do any thing for his pleasure, must engage himself to suffer all the pains annexed to it; and these pains, are thfe natural punishments of those actions, which are the beginning of more harm than good. And hereby it comes to pass, that intemperance is naturally punished with dis­eases, rashness, with mischances; injustice with the violence of enemies; pride, with ruin; cowardice, with oppression; negligent government of princes, with rebellion; and rebellion with slaughter. For seeing punish­ments are consequent to the breach of laws of nature; and therefore follow them as their natural, not arbitrary effects” {Leviathan, Everyman Edition, pp. 196-97). In this perspective moral obligation is reduced to prudential calculation, consistent with Hobbes’s secular picture of natural rights— and so, too, of political obligation.

Later, Locke attempted to restore a religious foundation to both morality and civil government through the medieval idea of divine law: “The difference between moral and natural good and evil is only this; that we call that naturally good and evil, which, by the natural efficiency of the thing, produces pleasure or pain in us; and that is morally good or evil which, by the intervention of the will of an intelligent free agent, draws pleasure or pain after it, not by any natural consequence, but by the inter­vention of that power. Thus drinking to excess, when it produces the head­ache or sickness, is a natural evil; but as it is a transgression of law, by which a punishment is annexed to it, it is a moral evil.

The Hobbesian thesis that natural rights could be given up to a po­litical sovereign (the state) that could thereupon, as the total possessor of the collected rights of all those it now represented, end the war of all against all, depended on the idea of sovereign individuals in the state of na­ture. This view of transferable natural rights was challenged by radicals. No human being, they argued, could alienate the right of self-preservation, be-

9. Cited in ibid., pp. 168-69.

Redeeming the “Human“ Through Human Rights 133 cause a natural right defined ones property and one’s self, and therefore no rational man could have done so self-injurious a thing.¹⁰

But the Hobbesian thesis, resting as it did on the idea of active rights, was also attacked from a very different direction. For example Mathew Hale insisted that the state of nature was neither a civil society nor a war of all against all: “Altho’ there was no instituted human government or lawes, but men were in that natural state wherein they were propagated into the world, yet even in that state there would be some things justa hon- esta et decora, and some things injusta inhonesta et indecora. Eveything would not be lawfull to every man; and that imaginary state of war; wherein every man might lawfully do what he thinks best without any law or controll, is but a phantasy; or if it be admitted, it must not, cannot be supposed the just state of nature, but as a disease disorder and corruption in it.”¹¹ It was not necessary in this argument to prove that all humans had the same ideas of what was just, honest, and noble.

The state of nature that these theories built on, and that became cru­cial in the later Enlightenment, was a secular condition in the sense that it did not presuppose the concept of God. But it did presuppose an argu­ment from origins. In the modern era the quasi-historical “state of nature” is done away with as the essential foundation for human rights (except among theorists such as Canovan who reformulate it as “myth”¹²). Never-: theless, there is still an essence attributed to “the human”—the essence that the early European theorists of natural law recognized as inalienable rights. As Tuck puts it, this doctrine came to mean that “anything which it was reasonable to want, could now be construed as an inalienable right, the re­covery of which was entirely justifiable: it was unlikely that any rational

10. According to Overton: “all iust humainepowers are but betrusted, con- fer’d and conveyed by ioynt and common consent, for to every individual in nature, is given individuallpropriety by nature, not to be invaded or usurped by any... for every one as he is himselfe hath a selfepropriety, else could not be himselfe, and on this no second may presume without consent; and by natural birth, all men are equall and alike borne to like propriety andfreedome, every man by natural instinct aiming at his owne safoty and weaL... Now as no man by nature may abuse, beat, tor­ment or afflict himself, so by nature no man may give that power to another, see­ing he may not doe it himselfe...” (cited in ibid., p. 149).

11. Cited in ibid., p. 164.

12. See Chapter 1.

man would renounce his rights to such reasonable gratifications. The principle of interpretative charity had been stretched very wide, and we have here clearly the eighteenth-century notion of the inalienable rights of mankind.”¹³ One owed no allegiance that would compromise one’s natu­ral rights to any body—singular or collective.

Given that the subject was to be seen as an individual sovereign in a sovereign state, Tuck points to the dilemma that now faced liberal theory. Liberals, he writes, have usually distinguished between two principles of conduct: On the one hand, there are principles to which subjects have as­sented, whether directly or indirectly, and to which they therefore owe their political obligation. These include social custom, the law, and the constitution. On the other hand, there are principles of obligatory conduct that do not derive from consent. These are not many, and they form a “thin” account of morality—a minimum requirement of the kind of so­ciality in which individual autonomy is closely linked to collective vio­lence. “However, a great deal of writing and talking about international af­fairs in our time supposes that there is an international community which polices its members and enforces quite a complex and contentious set of values upon them, and many people who are ‘liberal’ in domestic politics often favour such an idea. If what used to be the paradigm case of the lib­eral agent, the independent state, is now seen as inevitably enmeshed in complicated social settings; if sovereignty is widely treated (as it is in Eu­rope, if not in North America) as an outdated and uninformative category for states; then that traditional cousin of the sovereign state, the sovereign individual, is going to be hard to conceptualize with the old vividness.”¹⁴