Posts tagged natural rights

Column on Natural Rights

Let’s Talk about Natural Rights

Tibor R. Machan

When various skeptics question the soundness of the American political system, one of their targets is the idea of human nature. After all, the founders took their political philosophy mainly from John Locke who thought human nature does exist and, based on what we know of it and a few other evident matters, we can reach the conclusion that all human beings have certain rights. This is what is meant by holding that there are natural rights and that they are pre-legal, not a creation of government.

This is the idea that is rejected today by one of President Obama’s top advisers and the man in charge of the federal government’s regulatory operations. Cass Sunstein, who is now a professor of law at Harvard but is on leave to work with the administration, rejects any notion of rights not fashioned by government. And one reason for this may well be, although I am not certain about it, that Professor Sunstein does not agree that human nature exists.

Certainly many prominent legal and political theorists share this skepticism. I recently read one of them who argued that because in some cultures there is no reference to human nature anywhere, let alone in the law, the idea of human nature cannot be right. As if consensus determined whether human nature exists; as if it were impossible that some folks could be entirely ignorant of what human nature is, so much so that they might even deny its existence.

When the idea emerged in philosophy that things have a nature–e.g., starting with Socrates and his pupil Plato–it was thought that the nature of something resembled geometrical objects by being perfect and timeless. So if there is a human nature, it must be something perfect and a-temporal. But because none of us is going to live to eternity, none of us can establish anything as timelessly true. If human nature has to be something like that, then skepticism about it would be warranted.

But human nature–and, indeed, the nature of anything else–need not be timeless. What makes us all human, our human nature, can be the most up to date, well-informed specification of attributes, capacities, or properties so far. Anything else would be unreasonable to ask for since, as I already said, none of us is going to be here till the end of time and can thus establish that what we understand as human nature will not need some modification or adjustment. The principles the American founders rested on human nature were understood as capable of being updated, which is why the U. S. Constitution has provisions for its amendment. This, however, does not justify fundamental doubt or skepticism about either human nature or the principles based on it, such as our natural rights.

So at least one source of skepticism about our basic rights, rights that do not depend upon government’s grating them (even if their protection is government’s main job), can be set aside. But there is more. We are all dependent upon knowing the nature of things so that we can organize our knowledge of the world. We know, for example, that there are fruits–a class of some kind of beings–and games–another class–and subatomic particles–yet another class–and so on and so forth. These classes or natures of things are not something separate from the things being classified but constitute their common features, ones without which they wouldn’t be what they are. Across the world, for example, apples and dogs and chicken and tomatoes and, yes, human beings are all recognized for what they are because we know their natures even when some cases are difficult to identify fully, completely, even when there are some oddities involved.

So there is good reason that governments do not create rights for us–we have them, instead, by virtue of our human nature. And this puts a limit on what governments may do, including do to us. They need to secure our rights and as they do so they must also respect them.

Essay on Revisiting Natural Rights

Revisiting Natural Rights

Tibor R. Machan

In response to an essay in which I discuss the difference between Amartya Sen’s and the late Peter Bauer’s recommendation for how countries can achieve economic development, one in which I touch on the topic of natural rights, someone sent the magazine where my essay had appeared the following communication. I believe that it will serve as a good beginning for some further considerations of natural rights.

The author of the letter, Stephen E. Silver (to Free Inquiry Magazine [August-September 2010]), wrote as follows:

I think the simple answer to Tibor Machan’s question (“Sen v. Bauer: On What Do Rights Stand?” Fl, June/July 2010) is that human rights do not stand on anything. These rights, when first promulgated several hundred years ago, were called “natural rights” or the “Rights of Man.” They were believed to be God-given; if there was no God, then there was no basis for these rights.

As deism gradually gave way to outright secularism, so “natural rights” (based on “natural religion”) gave way to “human rights.” But if they did not emanate from God, what was their origin?

Machan would like us to believe that such rights are based on an objective knowledge of human nature. There is, of course no such knowledge. Different cultures have different concepts of human living. There are many societies that, as Captain Cook learned, have little or no concept of private property or in which the personal ownership of land is inconceivable. Even within the same culture, there are many different concepts of human nature—should we accept that of Hobbes, Locke, Rousseau, or Nietzsche?

Additionally, he posits that such rights rest in the human capacity to reason about reality. In fact, as anyone watching Fox News will confirm, the human capacity to reason about reality is extremely limited and cannot be used to establish that we have or deserve to have human rights. This is a complete non sequitor.

In either case, Machan believes that certain rights actually exist. He calls them “pre-legal principles,” but this is simply a euphemism for “natural rights,” i.e., natural rights without God but which are nevertheless inviolable and not open to discussion.

There is absolutely no evidence that such abstract rights or pre-legal principles exist. And certainly, in practice, these so called inalienable rights may be abrogated or withdrawn. If we have a natural right to life, then why is there a death penalty? If there is a right to liberty, why is there incarceration? Our “freedom of speech” is limited by laws against libel, slander, and “hate speech.” Obviously these “inalienable” rights are, in fact, provisional.

Perhaps we should treat others as if they had human rights, and we should ourselves be treated as if we had human rights, but these rights do not really exist. We have made them up for ourselves. We have put them to good use, but we should admit that they are simply a figment of society’s imagination. Indeed, they may represent our best aspirations.

Let me start with the first point Mr. Silver raises, namely, that human rights used to be dubbed natural rights and were as such thought to be God-given. Yet, as the term “natural” clearly suggests, these rights were believed–for example by John Locke–to be based on an understanding of human nature. Human beings may have been regarded by some natural rights theorists as God-created but their basic rights were alleged to be derivable from their nature as free and independent moral agents. That is how John Locke saw it, rightly or wrongly. So what matters here is whether there are human beings as a class of living entities in the world and whether they have attributes that imply that they have certain rights once they find themselves in human communities. Locke and the American Founders held that they do. God had nothing much to do with this part of the theory.

Next, the reason for the switch to human rights from natural ones was not due to any theological considerations either but because the idea of “the nature of X” fell into disrepute at the hands of skeptics, like David Hume, who disputed that things had a firm, stable nature. Yet this is still a very open issue in philosophy, so it is widely argued that human nature exists and that certain rights may be derived from it. Even if widely disputed, it could well be right, which is what really matters.

As to whether there are many different conceptions of human nature throughout history and the globe, that’s irrelevant. There are many different conceptions of justice, fairness, equality, virtue, vice, etc., but that’s due to the simple fact that people don’t see things eye to eye. It does not imply for a moment that no human nature can be identified, only that they dispute about the matter just as they do about most other serious human concerns (even in the natural sciences). In my view, which is by no means idiosyncratic, human nature exists–it consist of those aspects of what human beings are that they share, in virtue of which we are classified as human beings rather than, say, bears or zebras (which also have a nature).

Also, the fact that a principle can be violated doesn’t disprove its existence–woman have the right to their sexual liberty yet rapists violate this principles all the time. Moral and political principles are of that sort.

Another point on which the letter’s author is mistaken is the defining capacity of human beings to reason. They are rational animals, as most thinkers have found since ancient times. This means they have the capacity to be rational, to reason carefully about the world. It does not mean that they do so all the time–on Fox TV or MS NBC, for that matter–or that all of them choose to do so.

The idea of natural rights is pretty well grounded–I wrote about this in my Individuals and Their Rights (1989)–and the existence of disagreement does not undermine it. There are thousands of racists who disagree about the moral equality of blacks and whites and they are entirely irrelevant when it comes to the truth of the issue.

As a side issue, this author’s case against natural rights, is exactly the same as that presented by the philosopher Kai Nielsen in his paper from 1965, “Skepticism and Human Rights,” in The Monist. The debate goes on but that doesn’t mean there is no truth about the matter. Today it is the president’s favorite attorney, Cass Sunstein, who voices the skepticism about natural rights, to morrow it will be someone else. That’s why eternal vigilance is needed.

Column on Why Basic Rights Cannot Conflict

Rights May Never Be In Conflict

Tibor R. Machan

If rights were no more that fancy ways of expressing preferences—in short, if morality and politics could only produce emotional expressions—there would be no doubt about the possibility of conflict between rights. Those who embrace the emotivism of the likes of Thomas Hobbes and David Hume (e.g., Michael Oakeshott, Karl Popper, and, I assume, many economists) must admit to the possibility that an assertion of a right to, e.g., private property or freedom of speech, could be in conflict with an assertion of a right to, say, political participation. That is because these asser tions are for them, in the last analysis, no more than expressions of private or collective emotional preferences.

There is, however, the alternative of the natural rights classical liberal tradition. Within its tenets, which I believe make better sense than alter natives do, a conflict of true rights claims cannot exist. It is one vital contention of this tradition that when a claim is made as to someone’s having a basic right, the claim may be confirmed by reference to a correct understanding of human nature. That such an understanding is possible is itself a controversial issue. Yet it seems to me that skepticism here, as in many other cases, stems from a wholly unrealistic conception of what it takes to know something. With a conception of knowledge such that when we know something, we have the clearest, most self-consistent, and most complete conceptualization possible to date of what it is we supposedly know the problem is solved.

The natural rights position sees human nature as one category of reality that rests on our achievement of a grasp of reality. And with human nature we discover, according to this tradition, that a new aspect of reality, unlike that we are familiar with outside the human world, has come into focus, namely, morality and politics. We need to answer a question concerning ourselves, namely, “How we ought to live?” —since we haven’t the programming of other living beings that will just take care of living for us, that will avoid mistakes automatically. We need, also, to answer the question “How should we organize ourselves in communities?”

In both these human spheres of concern we are dealing with reali ty and just as anywhere else—say between economics and biology—no conflict is tolerable between true claims, so in ethics and politics no such conflict is possible. The reason is metaphysical, in the last analysis, justified in Aristotle’s defense of the Law of Non-Contradiction, a defense that still hasn’t been adequately challenged and the challenge of which will always be self-defeating.

In particular, the natural rights classical liberal tradition identifies the rights to life, liberty and property (etc.) as basic for human community organization. These rights are not, however, basic to human life—no concern with rights arises on a desert island for Robinson Crusoe. They derive from human nature and the ethics of individualism, to whit, that each person ought to live an excellent human life, a life of freely chosen rational conduct.

From the right to life and liberty there emerges, with suitable analysis, the right to private property. It rests on two considera tions: (a) human beings require sphere of individual or personal jurisdiction, so that they may carry out their moral responsibility to choose to do the right thing; (b) the choice to acquire valued items from nature or by trade is a moral responsibility, the exercise of the virtue of prudence.

Any bona fide political system must be organized in large measure so as to protect the rights to life, liberty and, in the practical respect of both of these, the right to private property. Thus any political rights—to be free to engage in decision-making vis-à-vis political matters (Sen)—must not violate those basic rights. Political rights include the right to vote, serve in government, take part in the organization of political campaigns, etc. Practically speaking, the exercise of one’s political rights may have an impact on who governs, various internal rules of government, and the organization of political processes. But there is no political right to override anyone’s right to life, liberty or property. Any evidence of some community’s legal system overriding these rights is ipso facto evidence of the corruption of that system from a bona fide political one into one of arbitrary (even if majority) rule.

As we judge communities across the globe, we must keep in mind that what is comparatively best is not always the best possible. Thus we can affirm the greater merits of certain political communi ties or countries despite their evident violation of basic rights. Just as in personal assault cases we can distinguish between major and minor ones, as well as those in between, we can also tell when communities rest on principles that render them entirely corrupt, those that simply are confused and messy, and those that come reasonably near to meeting the standards of basic human rights.

In an informal way we already apply this method of judging communities, even if not for all purposes. We should go much farther and apply it more strictly and substantively, including as we appraise our own country’s laws.