OCTOBER 01, 1972 by RONALD F. COONEY
Mr. Cooney is a free-lance writer recently graduated from the University of Nevada.
The concept of natural rights no doubt has its origin in the Roman Stoic idea of a "law above the law," of an unwritten law which precedes and is superior to manmade law. Christian philosophy, in the persons of St. Augustine and St. Thomas Aquinas, developed and refined the natural law idea, and it was a significant tenet of the eighteenth century Enlightenment. The doctrine has come down through the centuries as one of the major arguments against arbitrary and unrestrained governmental power.
In much the same way is the belief in the natural rights of man a belief in "rights above rights." Likewise, natural rights have been used in the resistance to unjust authority. Natural rights were partial justification for the Glorious Revolution of 1688, for the American Revolution (the Declaration of Independence cited man’s "unalienable rights"), and for the French Revolution and the Declaration of the Rights of Man. All of the revolutions since the eighteenth century have drawn at least some of their power from appeals to natural rights.
The connection between natural rights and natural law is instantly recognizable. Both exist prior to the State, and both transcend it. Natural law, like the law of the State, provides protection for the individual’s rights from violation by another individual, or — and this the State does not do — by the State itself. Natural rights and natural law are the final arbiters of liberty. Finally, natural rights and natural law are both denied by those who exalt the State over the individual citizen. those who make the State all and the individual nothing. It is to this, as it is to all forms of Statism, that natural rights make a direct and implacable challenge.
A Dictatorial Delusion
The common delusion of the defenders of unlimited governmental dominion is that the State confers upon the individual whatever political and economic rights he may enjoy. This was certainly the view of Thomas Hobbes, the defender of absolute monarchy and the author of the Leviathan. Hobbes, in 1651, argued for the complete sovereignty of the king as ruler and lawmaker. Hobbes sought to repudiate natural law by placing it on equal terms with the civil law. He states in the Leviathan, "The law of nature and the civil law contain each other, and are of equal extent." In other words, natural law (and by extension, natural rights) is as high as, but no higher than, civil law. The sovereign makes civil law, and in Hobbes’ kingdom there can be no law higher than the decrees of the sovereign. He, in effect, is the law.
Whatever the political repercussions of a system like that which Hobbes postulates, there are certain moral and ethical questions which it poses. Hobbes’ felt that morals and ethics had no place in determining whether or not a system of government was good or evil. Such a judgment, according to Hobbes, could not be made, or if made, could not be proved. The correlation between Hobbes disavowal of natural law/natural rights and objective morality is palpable and direct. Hobbes realized that the acceptance of unalienable rights of life, liberty, and property would compel one to make a moral judgment of a political system which violated those rights. Having given the sovereign absolute authority to make laws, Hobbes goes on to say that no ethical determination can be made about the sovereign’s action, about its goodness or evilness. Ethics, to Hobbes, are purely subjective and inapplicable in political affairs. The sovereign, it would seem, is above both law and morality; or, like Nietzsche’s superman, "beyond good and evil."
Hobbes wrote in defense of authoritarian rule by one man, the monarch. Monarchy was, in Hobbes’ day, the most widespread form of government. With the gradual decay of the monarchical form, and the general democratization of governments, came the belief that it was not the leader of the nation who was sovereign, but the people themselves. The divine right of kings had become, as Herbert Spencer observed, the "divine right of majorities." But whether they represented the interests of monarchy or democracy, the enemies of natural rights had the same intention — to deny the individual any rights but those granted by the State.
Bentham’s Faith in Democracy
Of the type of thinker who spoke for democracy and against natural rights was the great utilitarian, Jeremy Bentham. No statist in economic concerns, Bentham was curiously inconsistent when it came to limiting, or not limiting, the State’s sphere of influence. Government’s function, as Bentham saw it, was "creating rights." He considered natural law and natural rights "fictions," and in his first work, the Fragment on Government, he castigated Blackstone for a contrary belief. Bentham’s antipathy to natural rights sprang from the conviction that natural rights were obstacles to reform, and he was against checks and balances and a system of separation of powers for the same reason.
Bentham thought, with the faith of the statist in the ability of government to solve all human problems, that by making the act of legislating as easy as possible, the State could deal more readily with society’s dilemmas. Bentham did not see what others, most notably the Framers of the Constitution, saw so penetratingly: that the power of the State to achieve good was equaled by its power to achieve enormous harm, that in seeking the former one necessarily braved the latter. Bentham did not perceive the difficulty inherent in placing all right-giving power in the State’s hands. He failed to understand that the capacity for bestowing rights could become the capacity for withdrawing rights. Finally, Bentham, like Hobbes before him, was incorrect in assuming that the State could create rights out of nothing. The State is a delegated authority, and what power it has derives from the individuals who comprise it. Such being the case, it is absurd to assume that the State can bestow rights on its own creators. The State may give order to rights, define them more clearly, and protect them with laws; but it can no more grant rights to the members of society than a child can grant rights to his parents.
The Ethical Case
The ethical arguments in favor of natural rights are perhaps even more telling. If it is true that men have only the rights the State has seen fit to give them, what is to stop the State, at any time and for any reason, from taking back those rights? Furthermore, how can we say that the State acts wrongly if it chooses to take that action? By the logic of the opponents of natural rights, the Nazi regime had a perfect justification for recalling the rights, including the right to life of 6,000,000 human beings, and should not be condemned or thought of as evil for simply exercising the prerogative to which, as a state, it was clearly entitled. Thus, the denial of natural rights quickly resolves itself into a rejection of the ethical differences between governments, making a slave-state the moral equal of a republic.
We now arrive at the final question, "What are the natural rights?" Although it cannot be answered precisely, that does not mean it is unanswerable. As has been said before, natural rights precede the State and hence are a priori in character. Natural rights are every man’s at birth and are not State-granted. If each man has an equal claim to liberty, that is, the use of his rights, he can be limited in his freedom only by the claims of other men to an equal share of liberty. The circle of rights around every man extends as far as it may without intruding on the rights of other men. For this reason are the "rights" granted by the State bogus rights. A right to receive welfare, for example, is invalid since it requires the abridgment, however partial, of the rights of the citizen who is compelled to pay for the welfare benefits given to someone else. Natural rights, by contrast, require no abridgment of another individual’s rights to exist, but are limited only by the same natural rights of another person.
In making his ethical choices, man is guided by a code believed to have the sanction of God; and experience has shown that the good life to which his instinct impels him can be achieved only if he makes his decisions accordingly. The Ten Commandments have been called the Word of God; they can also be described as natural law, and natural law has been described as nature’s way of applying means to ends.
FRANK CHODOROV, "Free Will and the Market Place"