Legal Rights

Some philosophers distinguish two types of rights, natural rights and legal rights.
* Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are ''universal'', ''fundamental'' and ''inalienable'' (they cannot be repealed by human laws, though one can forfeit their enjoyment through one's actions, such as by violating someone else's rights). Natural law is the law of natural rights.
* Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws). The concept of positive law is related to the concept of legal rights.

Natural law first appeared in ancient Greek philosophy, and was referred to by Roman philosopher Cicero. It was subsequently alluded to in the Bible, and then developed in the Middle Ages by Catholic philosophers such as Albert the Great and his pupil Thomas Aquinas. During the Age of Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.

The idea of human rights derives from theories of natural rights.Jones, Peter. ''Rights''. Palgrave Macmillan, 1994, pp. 72, 74. Those rejecting a distinction between human rights and natural rights view human rights as the successor that is not dependent on natural law, natural theology, or Christian theological doctrine. Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is an important legal instrument enshrining one conception of natural rights into international soft law. Natural rights were traditionally viewed as exclusively negative rights, whereas human rights also comprise positive rights. Even on a natural rights conception of human rights, the two terms may not be synonymous.

The concept of natural rights is not universally accepted, partly due to its religious associations and perceived incoherence. Some philosophers argue that natural rights do not exist and that legal rights are the only rights; for instance, Jeremy Bentham called natural rights "simple nonsense".

History

The idea that certain rights are natural or inalienable also has a history dating back at least to the Stoics of late Antiquity, through Catholic law of the early Middle Ages, and descending through the Protestant Reformation and the Age of Enlightenment to today.

The existence of natural rights has been asserted by different individuals on different premises, such as '' a priori'' philosophical reasoning or religious principles. For example, Immanuel Kant claimed to derive natural rights through reason alone. The United States Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are ... endowed by their Creator with certain unalienable Rights".

Likewise, different philosophers and statesmen have designed different lists of what they believe to be natural rights; almost all include the right to life and liberty as the two highest priorities. H. L. A. Hart argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. T. H. Green argued that "if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life." John Locke emphasized "life, liberty and property" as primary. However, despite Locke's influential defense of the right of revolution, Thomas Jefferson substituted " pursuit of happiness" in place of "property" in the United States Declaration of Independence.

Ancient

Stephen Kinzer, a veteran journalist for ''The New York Times'' and the author of the book ''All The Shah's Men'', writes in the latter that:

{{blockquote, The Zoroastrian religion taught Iranians that citizens have an inalienable right to enlightened leadership and that the duty of subjects is not simply to obey wise kings but also to rise up against those who are wicked. Leaders are seen as representative of God on earth, but they deserve allegiance only as long as they have ''farr'', a kind of divine blessing that they must earn by moral behavior.

The 40 Principal Doctrines of the Epicureans taught that "in order to obtain protection from other men, any means for attaining this end is a natural good" (PD 6). They believed in a contractarian ethics where mortals agree to not harm or be harmed, and the rules that govern their agreements are not absolute (PD 33), but must change with circumstances (PD 37–38). The Epicurean doctrines imply that humans in their natural state enjoy personal sovereignty and that they must consent to the laws that govern them, and that this consent (and the laws) can be revisited periodically when circumstances change.

The Stoics held that no one was a slave by nature; slavery was an external condition juxtaposed to the internal freedom of the soul (''sui juris''). Seneca the Younger wrote:

{{blockquote, It is a mistake to imagine that slavery pervades a man's whole being; the better part of him is exempt from it: the body indeed is subjected and in the power of a master, but the mind is independent, and indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is confined.

Of fundamental importance to the development of the idea of natural rights was the emergence of the idea of natural human equality. As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca. ... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it." Cicero argues in De Legibus that "we are born for Justice, and that right is based, not upon opinions, but upon Nature."

Modern

One of the first Western thinkers to develop the contemporary idea of natural rights was French theologian Jean Gerson, whose 1402 treatise ''De Vita Spirituali Animae'' is considered one of the first attempts to develop what would come to be called modern natural rights theory.

The Polish-Lithuanian union made a natural rights case at the Council of Constance (1414–1418), led by Paulus Vladimiri, rector of the Jagiellonian University. He challenged legality of the Teutonic Order's crusade against Lithuania, arguing that the Order could only wage a defensive war if pagans violated the natural rights of the Christians. Vladimiri further stipulated that infidels had rights which had to be respected, and neither the Pope nor the Holy Roman Emperor had the authority to violate them. Lithuanians also brought a group of Samogitian representatives to testify to atrocities committed by the Order.{{sfn, Christiansen, 1997, p=231

The Stoic doctrine that the "inner part cannot be delivered into bondage" re-emerged centuries later in the Reformation doctrine of liberty of conscience. In 1523, Martin Luther wrote:

{{blockquote, Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly. As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of everyone's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force.

17th-century English philosopher John Locke discussed natural rights in his work, identifying them as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the ''Virginia Declaration of Rights'', "all men are born equally free", and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity." Another 17th-century Englishman, John Lilburne (known as ''Freeborn John''), who came into conflict with both the monarchy of King Charles I and the military dictatorship of Oliver Cromwell, argued for level human basic rights he called "'' freeborn rights''" which he defined as being rights that every human being is born with, as opposed to rights bestowed by government or by human law{{Citation needed, date=April 2021.

The distinction between alienable and unalienable rights was introduced by Francis Hutcheson. In his ''Inquiry into the Original of Our Ideas of Beauty and Virtue'' (1725), Hutcheson foreshadowed the Declaration of Independence, stating: "For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. ... Unalienable Rights are essential Limitations in all Governments." Hutcheson, however, placed clear limits on his notion of unalienable rights, declaring that "there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest public Good." Hutcheson elaborated on this idea of unalienable rights in his ''A System of Moral Philosophy'' (1755), based on the Reformation principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable". Hutcheson wrote: "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."

In the German Enlightenment, Hegel gave a highly developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the ''de facto'' inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. According to Hegel, the same would not apply to those aspects that make one a person:

{{blockquote, The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them.

In discussion of social contract theory, "inalienable rights" were said to be those rights that could not be surrendered by citizens to the sovereign. Such rights were thought to be ''natural rights'', independent of positive law. Some social contract theorists reasoned, however, that in the natural state only the strongest could benefit from their rights. Thus, people form an implicit social contract, ceding their natural rights to the authority to protect the people from abuse, and living henceforth under the legal rights of that authority{{Citation needed, date=April 2021.

Many historical apologies for slavery and illiberal government were based on explicit or implicit voluntary contracts to alienate any "natural rights" to freedom and self-determination. The ''de facto'' inalienability arguments of Hutcheson and his predecessors provided the basis for the anti-slavery movement to argue not simply against involuntary slavery but against any explicit or implied contractual forms of slavery. Any contract that tried to legally alienate such a right would be inherently invalid. Similarly, the argument was used by the democratic movement to argue against any explicit or implied social contracts of subjection (''pactum subjectionis'') by which a people would supposedly alienate their right of self-government to a sovereign as, for example, in ''Leviathan'' by Thomas Hobbes. According to Ernst Cassirer,

{{blockquote, There is, at least, one right that cannot be ceded or abandoned: the right to personality...They charged the great logician obbeswith a contradiction in terms. If a man could give up his personality he would cease being a moral being. ... There is no ''pactum subjectionis'', no act of submission by which man can give up the state of free agent and enslave himself. For by such an act of renunciation he would give up that very character which constitutes his nature and essence: he would lose his humanity.

These themes converged in the debate about American independence. While Jefferson was writing the Declaration of Independence, Welsh nonconformist Richard Price sided with the colonists' claim that King George III was "attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title."Price, Richard (1979). ''Observations on the Nature of Civil Liberty''. 1776, Part I. Reprinted in: Peach, Bernard, (Ed.) ''Richard Price and the Ethical Foundations of the American Revolution''. Duke University Press. {{ISBN?{{rp, 67 Price again based the argument on the ''de facto'' inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which gives us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause."{{rp, 67–68 Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:

{{blockquote, Neither can any state acquire such an authority over other states in virtue of any compacts or cessions. This is a case in which compacts are not binding. Civil liberty is, in this respect, on the same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practise, so neither can any civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property.{{rp, 78–79

Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and again restated the ''de facto'' basis for the argument that the "liberty of men as agents is that power of self-determination which all agents, as such, possess."
In ''Intellectual Origins of American Radicalism'', Staughton Lynd pulled together these themes and related them to the slavery debate:

{{blockquote, Then it turned out to make considerable difference whether one said slavery was wrong because every man has a natural right to the possession of his own body, or because every man has a natural right freely to determine his own destiny. The first kind of right was alienable: thus Locke neatly derived slavery from capture in war, whereby a man forfeited his labor to the conqueror who might lawfully have killed him; and thus Dred Scott was judged permanently to have given up his freedom. But the second kind of right, what Price called "that power of self-determination which all agents, as such, possess," was inalienable as long man remained man. Like the mind's quest for religious truth from which it was derived, self-determination was not a claim to ownership which might be both acquired and surrendered, but an inextricable aspect of the activity of being human.

Meanwhile, in America, Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important", and in the 1776 United States Declaration of Independence, famously condensed this to:

{{blockquote, We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...

In the 19th century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U.S. constitution recognized and protected the institution of slavery. As a lawyer, future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van Zandt, who had been charged with violating the Fugitive Slave Act, that:

{{blockquote, The law of the Creator, which invests every human being with an inalienable title to freedom, cannot be repealed by any interior law which asserts that man is property.

The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke claimed that rights arise from the actions of government, or evolve from tradition, and that neither of these can provide anything ''inalienable''. (See Bentham's "Critique of the Doctrine of Inalienable, Natural Rights", and Burke's ''Reflections on the Revolution in France''). Presaging the shift in thinking in the 19th century, Bentham famously dismissed the idea of natural rights as "nonsense on stilts". By way of contrast to the views of Burke and Bentham, Patriot scholar and justice James Wilson criticized Burke's view as "tyranny".

The signers of the Declaration of Independence deemed it a "self-evident truth" that all men "are endowed by their Creator with certain unalienable Rights".
In '' The Social Contract'', Jean-Jacques Rousseau claims that the existence of inalienable rights is unnecessary for the existence of a constitution or a set of laws and rights. This idea of a social contract{{spaced ndashthat rights and responsibilities are derived from a consensual contract between the government and the people{{spaced ndashis the most widely recognized alternative.

One criticism of natural rights theory is that one cannot draw norms from facts.{{cite book , title=Natural Law & Natural Rights , url=https://archive.org/details/naturallawnatura00finn_556 , url-access=registration , publisher=Oxford University Press , author=Finnis, John , year=2011 , location=Oxford , page
23
��58 This objection is variously expressed as the is-ought problem, the naturalistic fallacy, or the appeal to nature. G.E. Moore, for example, said that ethical naturalism falls prey to the naturalistic fallacy.{{Citation needed, date=July 2013 Some defenders of natural rights theory, however, counter that the term "natural" in "natural rights" is contrasted with "artificial" rather than referring to nature. John Finnis, for example, contends that natural law and natural rights are derived from self-evident principles, not from speculative principles or from facts.

There is also debate as to whether all rights are either natural or legal. Fourth president of the United States James Madison, while representing Virginia in the House of Representatives, believed that there are rights, such as trial by jury, that are social rights, arising neither from natural law nor from positive law (which are the basis of natural and legal rights respectively) but from the social contract from which a government derives its authority.

Thomas Hobbes

{{Main, Thomas Hobbes
{{Primary sources, section, date=August 2020

Thomas Hobbes (1588–1679) included a discussion of natural rights in his moral and political philosophy. Hobbes' conception of natural rights extended from his conception of man in a "state of nature". Thus he argued that the essential natural (human) right was "to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own judgement, and Reason, he shall conceive to be the aptest means thereunto." ( ''Leviathan''. 1, XIV)

Hobbes sharply distinguished this natural "liberty", from natural "laws", described generally as "a precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving his life; and to omit, that, by which he thinketh it may best be preserved." ( ''Leviathan''. 1, XIV)

In his natural state, according to Hobbes, man's life consisted entirely of liberties and not at all of laws – "It followeth, that in such a condition, every man has the right to every thing; even to one another's body. And therefore, as long as this natural Right of every man to every thing endureth, there can be no security to any man... of living out the time, which Nature ordinarily allow men to live." ( ''Leviathan''. 1, XIV)

This would lead inevitably to a situation known as the " war of all against all", in which human beings kill, steal and enslave others to stay alive, and due to their natural lust for "Gain", "Safety" and "Reputation". Hobbes reasoned that this world of chaos created by unlimited rights was highly undesirable, since it would cause human life to be "solitary, poor, nasty, brutish, and short". As such, if humans wish to live peacefully they must give up most of their natural rights and create moral obligations to establish political and civil society

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