NATURAL RIGHTS AND GOVERNMENT

Last night, we discussed the Federalist Paper no.2 written by John Jay. Before long, we became entangled in a conversation about natural rights and how the new constitution being proposed by Jay would require people to yield some of those rights to a new government. It sounded to me as though people assume we are born completely free and that our government (or any government) takes away part of that freedom in exchange for certain benefits. There is some truth to that view but, in my opinion, it is based on a misunderstanding of both history and political theory.

The language adopted by Jefferson in the Declaration of Independence uses the expression “inalienable rights,” among which are “life, liberty, and the pursuit of happiness.” Now, we might ask where this notion of inalienable right comes from? Are we born with it already in our minds like one of Kant’s innate ideas? Hardly. It is a concept whose roots go back as far as Thomas Aquinas, and in its current manifestation is largely derived from John Locke, who enumerated one’s inalienable rights as being “life, liberty and  property.” Jefferson’s phrase, “the pursuit of happiness,” is a more general application of our understanding of what freedom entails.

Now, the idea that people might have natural rights at birth is not new. It is an idea that became fashionable during the Enlightenment. Although, the idea that we are born free is popular today, we might very well ask ourselves, is it rational? what does it mean to say that we are born free? One obvious meaning is that we are not born into captivity; thus, we are slaves to no one. But this was certainly not true of everyone at the time that Jefferson was writing. Even today, if you are born in North Korea or Somalia, just how free are you? Until the Berlin Wall came down in 1989, no one living behind the Iron Curtain had the option of leaving, so we could hardly have said that everyone was born free.

Jefferson was not naive. When he used the expression “inalienable rights” he meant in principle, not in day-to-day reality. Men everywhere want to be free and their various forms of government ought to acknowledge that freedom. In Jefferson’s opinion, any government that does not recognize our inalienable right to freedom is illegitimate and ought to be overthrown. The concept of inalienability, or rights that cannot be (lawfully) taken away from you, is derived from the theory of natural rights. Natural rights are simply rights that people have prior to the formation of governments. They are inalienable because they are part of the human condition. They are not articles of clothing which can be torn from an individual, leaving him naked and powerless to the mercy of strangers.

On the other hand, not everyone agrees on the existence of natural rights. Nietzsche and Hegel certainly didn’t. Neither did Plato, Aristotle, or any of the Stoic philosophers. In the old Roman Republic, only Cicero advocated the idea. To everyone else, the idea of having natural rights  would seem quite bizarre. The truth is only Roman citizens had rights; everyone else was at the mercy of fate or the will of the gods. I’m pretty sure the Taliban do not teach any theory of natural rights to the people under their control. But the truth of a theory is not contingent upon the number of people who embrace it. Whether or not natural rights were originally derived from God,  they are “natural” today because they do not depend on any particular government. As Hobbes noted, they precede the formation of government. So, even in a state of nature, you still have those rights, though not everyone will acknowledge them.

Rights vs. Obligations:

We Americans are in love with the idea of freedom. Libertarians, for example, seem to think of freedom as their unrestricted right to do whatever they please, without interference from any government. This is a very expansive view of freedom, hard to justify when not everyone obeys the law. But every right carries with it an implicit obligation. If you think about it, this only makes sense. I have a right to go wherever I choose to go until I run up against my neighbor’s fence. His right to privacy and his ownership of property is a limit on my personal freedom to roam wherever I choose to go. Likewise, every right I possess carries with it an obligation to respect the rights of other citizens. This is not just courtesy. These rights have the force of law behind them. Otherwise, they would not be obeyed by anyone at all (well, angels maybe; but as Madison pointed out, human beings are not angels.)

Politically speaking, the idea of freedom is a conditional proposition. No one is absolutely free because we are all subject to the laws of nature. Only a supernatural entity (such as God) could ever be described as unconstrained. The doctrine of natural rights originally grew out of a recognition of our own physical limitations. In theory, we may enumerate whatever rights we think are useful and appropriate to our happiness. However, in the real world (i.e. the political world) rights that are unenforceable are considered moot. Any belief in natural rights is contingent upon a belief that there is an all-powerful being, such as God, who is capable of enforcing those rights.

From a Christian or Jewish perspective, the calculus of rights and obligations comes directly out of the original contract established between man and God after the Great Flood when evil was purged from the face of the earth. Later, in Genesis, this contract was renewed through Abraham and Moses. Every appeal to natural law has roots in this theological story. The commandments inscribed on the stone tablets which Moses brought down from Mount Sinai are the first vestiges of law which define the nature of contract. These are the obligations that man agrees to in order to receive the protection and grace of his Creator. It is a one-sided contract because God has all the power. Yet, mankind either submits or is destroyed. For some people today, these laws also serve as divine instructions on how mankind ought to behave.

Ok, so we have laws engraved in stone. But where are the benefits? What do we expect to receive from God if we hold up our end of the bargain? Here is where we might begin to reflect upon the value of the social contract. Both Hobbes and Locke agreed that mankind behaves better in society than in a raw state of nature. But the benefits of society come with a price, and the most noticeable price we pay as individuals is a willing sacrifice of some portion of our natural liberty. The arguments over the Constitution and how much power to surrender to government reveal today how much or how little people are willing to trust in the behavior of their fellow citizens. For people whose welfare was not considered in the establishment of our republic (for example, slaves and women, neither of whom were given the right to vote), they had no other recourse than to appeal to the good conscience of their fellow man. Yet even then, one has to question the basis for having a good conscience.

Where, ultimately, do our ethical values come from? Is it from above or within? Because until a proper foundation is established for morality, it is fruitless to expect anything better from governments that are instituted by people who are unwilling or unable to govern themselves. This is why Plato was convinced that to have virtue in government, you first needed to cultivate virtue in the people. And this remains a central problem today: should we look to government to provide moral guidance, or should we ourselves strive to be guided by moral principles, and by doing so, create a fertile environment for the cultivation of public virtue? The balance between freedom and virtue is always tenuous. In the best of all possible worlds, we would not have to choose one over the other. A virtuous people should always give rise to a government that preserves our liberty and our fortunes. But experience is our guide, and we know that power and virtue seldom remain in one another’s company. So, advocates for the constitution like Hamilton, Jay, and Madison believed that this document would, in time, become our safeguard against the temptations of power and the inconstancy of men. Were they right?