“Even those who agree that rights exist struggle to locate where they come from, what counts as a genuine right, and how to realize them.”
Human rights, as a concept, remains among the more ambiguous moral and legal practices of today. During the last century, figures on both the political right (such as Carl Schmitt) and on political the left (such as the critical legal studies movement) denigrated the concept of human rights. They dismissed them as utopian fantasies at best—and screens masking the real operations of power at worst. Even those who agree that rights exist struggle to locate where they come from, what counts as a genuine right, and how to realize them.
Positivists—in the broadly Benthamite tradition—see rights as flowing from concrete legal and constitutional protections. In this reading, one can generate a right to almost anything so long as a legal body chooses to codify it into law. Liberal egalitarian theorists—in the vein of Ronald Dworkin and Martha Nussbaum—believe that rights must flow from a deeper set of principles, such as a commitment to human dignity or the fulfillment of human needs. This suggests that the current set of rights recognized by most states—and some international legal bodies—are highly inadequate and predicated on what Henry Shue might call the false distinction between so-called negative rights and the positive rights that collapse in practice. Others follow Nozick in regarding rights as “side constraints” protecting individuals from coercive political authorities, while defining what the state can do to generate law and order. Individuals who are attracted to these kinds of positions are usually skeptical—or even hostile to—the idea that rights can be generated that entitle people to more than protection from coercion. They tend to dismiss the idea that rights can or should mean anything more than this. Finally, there is a small tradition of individuals who regard rights as “natural,” which typically means they flow from a deeper set of metaphysical commitments about human nature or the good in itself. The most prominent figure who argues for this position is the controversial Oxford scholar John Finnis, who links the argument for natural rights to his claims about natural law and the relationship between the individual and God.
In my forthcoming book Making Human Dignity Central to International Human Rights Law: A Critical Legal Argument,I establish links between a left-wing conception of human dignity and human rights and attempt to rebut objections from critical legal theorists that rights are invariably a mask hiding the exercise of coercive power (and are distractions from hegemonic forces directing the law). In these two articles, I will unpack this position in some detail, beginning with a brief look at the philosophy of human rights leading up to the contemporary age.
The Rise and Fall of Natural Law and Rights
The history of rights begins in the natural law tradition, particularly in the work of Greek, Stoic, Christian, and Islamic scholars. These figures varied greatly in their metaphysical and moral commitments, but the general idea was that the universe operated according to certain foundational principles, which were—on the whole—benevolent. Everything in existence had an intrinsic purpose—what Aristotle would call telos—which directed its movements and, in the case of living creatures, their actions. Natural law was, in effect, what reason or faith determined were the correct actions human beings needed to undertake in order to fulfill their purpose in existence. Natural law illustrated the duties individuals had to others and the state had to its subjects. This included respecting their life and a guarantee of freedom from tyranny. Of particular note are the Christian and Islamic injunctions that we respect each individual as he or she were ultimately the creation of God, who, of course, determined the course of all events towards their natural and good conclusion.
These Ancient and religious conceptions of natural law and rights tended to differ quite substantially from our own. While I think his thesis is somewhat overstated, there is something to Leo Strauss’s arguments about the distinction between ancients and moderns in his classic book Natural Right and History. According to Strauss, for the ancients, natural rights were fundamentally connected to a universal theory about what individuals should do with their lives. Modernity, on the other hand, makes rights increasingly concerned with what freedoms individuals should enjoy.
This is reflected in the advent of modernity, where discussion of natural law and natural rights persisted but was given an increasingly legalistic form by writers like John Locke and Francis Hutcheson. Theorists in this vein often made a distinction between a pre-political state of nature where only natural law and rights existed, and they used this distinction to vindicate or criticize the legitimacy of the existing state. Critiquing authoritarian social contract theorists like Thomas Hobbes, these philosophers claimed that natural rights were those enjoyed by individuals prior to the formation of the state. In the Second Treatise on Government, Locke stipulated that these included rights to life, liberty, and property. As he puts it:
“…Though [the state of nature] is a state of liberty, it isn’t a state of licence ·in which there are no constraints on how people behave·. A man in that state is absolutely free to dispose of himself or his possessions, but he isn’t at liberty to destroy himself, or even to destroy any created thing in his possession unless its destruction is required for some nobler purpose. The state of nature is governed by a law that creates obligations for everyone. And reason, which is that law, teaches anyone who takes the trouble to consult it, that because we are all equal and independent, no-one ought to harm anyone else in his life, health, liberty, or possessions.”
Locke connected his arguments about natural rights to a revolutionary theory of political legitimacy. Individuals who agreed to a social contract did so to better advance their interests in cooperation with others—and to ensure the protection of their pre-political natural rights. But this meant that the state was not permitted to violate those rights under any circumstances. The state, after all, had only come into existence to protect them. If a state failed to protect rights or actively violated them, then the citizens of a state were permitted to rebel and overthrow the government. This position was more radicalized still by Jean Jacques Rousseau, who in his Discourse on the Origins of Inequality wrote about the “natural liberty” of all people in the state of nature. Interestingly, he contended that in this circumstance there was no natural right to property since the earth was held in common by relatively harmless human beings. It was only with the institution of property relations that a coercive and corrupting state which deployed coercion to protect the powerful emerged. Rousseau is implicitly critical of Lockeans for assuming a natural right to property can exist without a coercive state to enforce it. Lockeans, therefore, do not describe the natural rights of individuals but only their rights in a coercive political society which enforces unequal property relations against the real interests of citizens.
“The philosophers, who have inquired into the foundations of society, have all felt the necessity of going back to a state of nature; but not one of them has got there. Some of them have not hesitated to ascribe to man, in such a state, the idea of just and unjust, without troubling themselves to show that he must be possessed of such an idea, or that it could be of any use to him. Others have spoken of the natural right of every man to keep what belongs to him, without explaining what they meant by belongs.”
Later in The Social Contract, Rousseau tried to find a way to restore the natural right to liberty while accepting that the state was here to stay.
The arguments of figures such as these were revolutionary in their implications, and it would not be long before they bore fruit. The American revolutionaries invoked Lockean claims about how property could only be appropriated if citizens were granted representation in the legislature. A few decades later, the French Revolution rocked Europe, with Rousseauian-inspired agitators overthrowing the monarchy and issuing the Declaration of the Rights of Man and the Citizen. As Lynn Hunt observes in her book Inventing Human Rights, both revolutions gained a great deal of traction from the spread of art and cultural products emphasizing the innate goodness of human beings and the power of reason to remake the world. As such, many initially welcomed their triumph, though—as I have observed elsewhere—reactionaries like Joseph de Maistre were appalled. But at the height of their triumph, a significant pushback was brewing against the grandiosity of both the revolutionaries and their chosen philosophies.
Conclusion: Reformulating Positive and Moral Rights
At the same time as the French Revolution was brewing, writers from two very different traditions were attacking the philosophical arguments for natural law and rights. The father of modern conservatism Edmund Burke was among the first, expressing admiration for the American revolutionaries in standing up for their rights as Englishmen, who were entitled to want participatory government. But he found the arguments about natural law and rights invoked by the French to be vacuous and empty. Rights, according to Burke, emerge out of a confluence of historical and traditional processes. To speak of something like the universal and natural “rights of man” disregarded that human beings in most of the world knew nothing about these alleged rights, having no experience with them in their societies. It, therefore, made no sense to talk about them; the only real rights were those which emerged from concrete traditional practices and histories. Interestingly, this position still splits conservatives, with old fashioned natural rights theorists like Harry Jaffa being critical of pseudo-Burkeans like Robert Bork.
At the same time an even more significant philosophical critique was being developed by Jeremy Bentham, the chief theorist of utilitarianism and one of the founders of modern legal positivism. Bentham was a highly prolific polymath, and summarizing the relationship between all the dimensions of his thinking would go beyond the scope of this essay. The main work we are interested in is his Anarchical Fallacies, published in 1796 and attacking the French revolutionaries and, by proxy, the entire tradition of natural law and natural rights. Bentham was a strict empiricist and argued that the claim that some metaphysical concept or thing like natural law or rights could exist independent of the state was nonsense. Historically, prior to the existence of law no human being saw himself as having a “right” to anything in the sense we would understand it—any more than he would understand himself as being bound by some transcendent moral power called natural law. Rights came into existence not with natural law but through positive law, and this was because constitutions and legal orders of various states enshrined and enforced them through a combination of carrot and stick. The idea of natural rights and law was dangerous nonsense, since it convinced individuals that they were morally entitled to do as they wished even when the state may be operating in their best interest. As Bentham famously put it:
“That which has no existence cannot be destroyed—that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense: for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle.”
Now unlike Burke, Bentham did not intend this argument to operate as a defense of the status quo. He was committed to using the law to radically reform society according to the principles of utility. Indeed, Bentham also heaped ridicule on traditionalists who were as irrationally enamored with thin conceits like history and culture as the French philosophes were with metaphysical abstractions. But he firmly insisted that any rights which existed came into being through the law. He believed that rights did not even have a hazy kind of existence that predated their enshrinement in law. This argument would prove immensely influential, as legal positivism came to dominate philosophical understandings of law and rights.
Matt McManus is currently Professor of Politics and International Relations at TEC De Monterrey. His book Making Human Dignity Central to International Human Rights Law is forthcoming with the University of Wales Press. His books, The Rise of Post-modern Conservatism and What is Post-Modern Conservatism, will be published with Palgrave MacMillan and Zero Books, respectively. Matt can be reached at firstname.lastname@example.org or added on Twitter via @MattPolProf.