Natural Rights: The Seventeenth Century Background


1. A right is claimed or exercised in virtue of a rule which entitles a certain class of people to exercise the right.
    1.1 In modern western societies, these rules are generally embodied in some system of positive law enacted by a legislature.
2. But what then is a natural right, i.e. one that precedes or exists independently of positive law? In virtue of what does it arise and gain authority?
    2.1 The theological model for natural rights, held by Thomas Aquinas and others, was that such rights were given by God, the divine lawgiver. Unfortunately, this fails to hold outside of a particular set of theological beliefs. It may be for this reason that it is not generally invoked.

    2.2 There is also a moral model, viz. the view that all human beings ought to have certain rights recognized and protected by positive law. This is a view held by numerous philosophers.
     

      2.2.1 But this is not what natural rights theorists generally appeal to, i.e. they don't claim that the right follows from the moral imperative, but rather that the moral imperative is justified by the existence of the natural rights of human beings. It is because the natural rights exist that the moral imperative ought to be recognized.
       
    2.3 So, given the failure of the above attempts, on what basis can natural rights be defended?

    2.4 In addition to the theological and moral models, there is a contractual model which says that if you claim something from me that is not protected by positive law (e.g. in a totalitarian dictatorship such things as freedom of speech, assembly, self-determination, etc.), I can ask what it is that justifies your claim to these things.
     

      2.4.1 So, for example, if I entered explicitly or implicitly into a contract or promise with you and you have fulfilled your part of the agreement, then in such a case your claim is justified.

      2.4.2 But how does this address the issue of a natural right, i.e. one that holds just in virtue of my existence? How is there a contract in this case, and with whom would I have such an agreement?
       

    2.5 Here the argument moves to the notion of a natural contract with a claim to natural rights justified roughly in the following way.
     
      2.5.1 No one has a right against me unless there is a contract; unless there is consent on my part and full performance of the claimant's obligation under the contract.

      2.5.2 No one can legitimately interfere with me unless the above conditions are met, and that includes the State.
       

    2.6 This notion of natural rights, which emerges in the seventeenth century, helps explain why the social contract is necessary for a proper defense or justification of state power.

    2.7 It is against this backdrop that we should look at Hobbes' argument for the State, a mechanistic argument designed to avoid any appeal to divine right or to moral value, but rather to ground morality and virtue on "enlightened self-interest".

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© T. R. Quigley, 1999