Natural rights and legal rights differ greatly. Natural rights are inherent in nature or human reason. They are universal and inalienable. Legal rights, in contrast, are granted by the power of government. Unlike natural rights, legal rights may be waived or revoked at any time, and they can be bestowed on just a small group. Legal rights are limited and temporary.
Whereas natural rights are inherent, legal rights are gifted to you. By definition, legal rights are entitlements; they are rights granted to you, in this case by the power of the government. The claim to your entitlements is only justified by the gift of the grantor. If both natural rights and legal entitlements exist, legal entitlements may violate natural rights and thus be inherently, morally wrong.
A recent letter from a reader expressed the claim that there is no such thing as natural rights. It read, “All practical rights arise by agreement. People make rhetorical claims that ‘God’ or ‘Nature’ favor this right or that right, but that’s only rhetoric. Rights only become practical when we all agree to respect and protect that right for each other. The ultimate criteria for judging any right is whether it serves the best good for everyone.”
This reader may very well agree with philosopher Thomas Hobbes, who believed we as a society should pragmatically submit to the laws instituted by the sovereign to avoid the chaos that would ensue from arguing about or defending our natural rights. Hobbes is famous for his theory of the purpose of law as avoiding societal chaos rather than defending natural rights.
Without the guideposts of natural rights, there are no boundaries to the entitlements that can be legislated by governments. Furthermore, because legal entitlements are limited and temporary, they can be granted to one portion of the populace and not another and can be at one moment be granted and at another prohibited. Legal entitlement without the check of natural rights is what makes discrimination not just socially acceptable but required law.
Furthermore, without natural rights, there is no way to judge or even discuss if there are moral wrongs in past regimes. Without any natural, inherent principle, your choices can be forcibly restricted and your prospects dimmed by the majority without having any natural rights to counter the unreasonable legislated entitlements. After all, in a world with no natural rights, words like “unreasonable” or “unfair” don’t really mean anything. For who are you to say you deserve more legal entitlements or that each person should have the same number of entitlements? In a law only built by entitlements, the grantor gets to decide who has the right to what.
Entitlements don’t have to serve the best good for everyone. If there were no rights apart from law, politics would simply be a terrible and endless struggle of using the legal process to punish your enemies and benefit your tribe.
Here is the question: Is there a natural moral code that we can apply in changing circumstances? Or is it the case that absent of the law all things are permissible? Assuming there was no law against it, is it permissible for me take the very food out of your children’s mouths without any acceptable, natural sense of outrage or injustice?
In 2003, after more than a 30-year philosophical journey to find the origins of their field, law professor Hugh Gibbons and attorney Nicholas Skinner wrote the article “The Biological Basis of Human Rights.” They noted that the idea of justice appears in every society and seems to be universal. For example, an unprovoked attack is always wrong everywhere. We have outlined their seven-step argument in more detail on our website (MarottaOnMoney.com), but the crux of their argument lies with the idea of the human “will.”
They define the will as the mental state that produces the feeling of responsibility for your actions. An example would be the mental phenomenon that happens just prior to lifting your hand, that moment when you know and have decided you are going to perform the action. A second later, it is that mental phenomenon that makes you feel responsible for the action you’ve just taken. This way of defining the human will can be thought of as a very precise way of defining human intentions.
In Gibbons and Skinner’s argument, they prove that human wills are equal, or “flat.” There is no durable basis for preferring the will of one person over the will of another.
No natural, persistent method can be used to say that your intentions are better than mine or my intentions are better than yours. “We may characterize some purposes as more lofty than others, or more clever, useful, or entertaining,” Gibbons and Skinner write, “but that does not alter the irreducible unity of will itself in each person.” This is the basis by which Gibbons and Skinner view humans as equal; our wills are flat with no discernible, biological way to create a hierarchy.
Alongside our self-interest is an innate sense of justice. We must act and our undertakings change the world, but in the process, we feel constrained by a sense of justice and duty. Our actions dim the prospects or limit the choices of those around us. Like “rational squirrels,” Gibbons and Skinner say our natural solution is to be “other-regarding.”
We have the moral responsibility to gain another’s permission if they might be adversely affected or, if is not possible to do that, then we feel the need to act with due care. This moral sense is built into us and does not require environmental training. This is why members of a jury are competent to dispense justice without having been to law school. It is philosophically consistent with the flatness of human wills. It is also pragmatically useful in human society.
Many religious traditions argue that humans have been created with these rights because they have been made in the image of God as morally responsible agents. And one person is morally responsible not to infringe on the ability of others to act as moral agents.
Although we agree with this theological reasoning, it is equivalent to arguing that you can tell we have these rights by looking at the biological way in which we have been created. The theological argument adds a religious moral certainty, and the biological argument suggests there is no other moral code consistent with treating all wills as equally important.
Under this view, you may have many legal entitlements, but natural rights protect you when someone acts in a way that will diminish your will. This is the biological basis of a legal “wrong.” You have the right to expect others not to diminish your own ability to act and the duty to avoid dimming the prospects of others.
When your prospects have been wrongfully dimmed, you are granted the right to whatever coercion is needed to address the other person’s violation of their duties. In other words, the one wronged has a right to redress.
It is true that societies can fail to respect and protect the rights of its citizens, but our natural rights still give us a biological justification to experience moral outrage.
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5 Responses
Dale Seng
Interesting exploration. I need to check out the work of Gibbons and Skinner. I just got done reading two books by Jonathan Haidt. The most recent one “The Rightous Mind” presents a five-channel ‘moral foundation’ that Haidt posits we are all born with. Another idea present is that we are “groupish” (whereas the old thinking was that we were homo economicusly selfish). Pretty good read if you’re interested in why the human race is so quirky.
Megan Russell
Thank you for the book recommendation. I’ll have to check it out.
If you’re interested in reading more about Gibbons and Skinner, we wrote an article summarizing their case here called “Is There A Biological Basis For Human Rights?”
They can also be found at BiologyOfLaw.org.
Marvin Edwards
A “rhetorical right” is one that is defended only with a claim (for example, “That’s mine!”, “No it’s not yours, it’s mine!”).
To say that a right is “Natural” or “God Given” is a common rhetorical device. But it is meaningless unless one can define “Nature” or “God’s Will” objectively, in a way that one can demonstrate that “Nature” or “God” has indeed bestowed that right upon you. Otherwise it only invokes rhetorical power rather than the authority of reason.
For example, when Jefferson said the “Creator endowed” us with an “inalienable” right to life, what exactly does that mean? Will God actually step in to protect us whenever our life is in danger? No.
A “practical right” is another matter. It is a right that we have agreed to respect and protect for each other. It may be communicated by custom, by a formal code of ethics, or it may be embedded in law.
Ethics serves morality.
Morality is the intent to achieve good for ourselves and others. The ideal Morality seeks the best possible good for everyone. Our real morality is the best we can do for now.
The ideal Ethic is the best set of rules and rights that achieve the best possible good. Our real ethics is the best set of rules we can come up with so far.
Lacking a “God’s eye view” of the ultimate outcome of our decisions and actions, two good and honest persons may disagree as to which rule will produce the best result. This is best resolved through a process that reviews available information, discusses alternatives and their potential outcomes, and votes democratically to decide upon a working rule. Future experience may lead to revisiting and repeating the process.
Rights and rules are made of the same “semantic stuff”. We imply a right to life when we pass laws against murder. We imply a right to property when we pass laws against theft.
All practical rights arise from agreements. The agreements may be verbal customs passed down through generations, or implied in rules established for specific functions, or formalized in law.
A question sometimes arises as to whether rights fixed and “eternal” or rights can change. Surprisingly, the issue is irrelevant. If rights are eternal, then we must admit that our knowledge of perfect rules is still imperfect. The effect of our knowledge evolving is the same as if the rights were evolving.
Any Questions?
Marvin Edwards
Megan Russell
Response to: [Comment Deleted By Commenter]
You say, “Fundamentally the notion of natural rights is a metaphysical concept” and it sounds like a lot of your comments that follow find their origin in that statement. However, that claim is potentially not the case.
We wrote a companion blog post to this one titled “Is There A Biological Basis For Human Rights?” where we explore a paper written by law professor Hugh Gibbons and attorney-at-law Nicholas Skinner on a potential non-metaphysical origin for the basis of human rights.
As they describe it on their website:
You will likely find the concepts and arguments presented there to be interesting.
– Megan
John Gallagher
Response to: [Comment Deleted By Commenter]
It seems to me that you are troubled by the potential for groups of people to decide what is right and act upon it in a way that is potentially harmful when not constrained by laws defining what rights people may have, and thus what they may or may not do. This is understandable.
However, the problem with treating “natural rights” as subservient to legislative rights is that legislative rights are then, obviously, of greater importance. Legislative rights can be changed on a whim by lawmakers, whether those lawmakers are kings or congressmen. It is conceivable for a country to do something morally repugnant completely legally. A legislature could hypothetically decide that a certain class of people no longer is entitled to life and therefore exterminate them. What recourse to that legally-acceptable moral wrong is there if the law condones it? We would say “it’s not fair”, but if a potential natural right to life is subservient to the legal rights bestowed by the government, there is no way to argue.
Again, you say the danger in allowing natural rights to trump legislative rights is that people might abuse their autonomy and harm others. But natural rights must ultimately trump legislative rights to allow us to react to clearly unjust but lawfully-created rules. Otherwise, there is no recourse for the persecuted, nor even a way for them to say that they are persecuted.
Further, it is short-sighted to think that legislative rights are any less under the influence of bias and prejudice than natural rights proposed by individuals. Legislative rights were once proposed by individuals too and so share in the same problems.
Governments, backed by legislatures, typically can muster larger force than an individual or group of individuals. If there is a danger of any group of people to act dangerously, it makes more sense to restrict the one with greater power because they can cause greater damage. Because of that, it makes more sense to make rights determined by legislatures subservient to natural rights, rather than the other way around.