Natural Rights and Human Rights: The Foundation of Modern Liberty

The story usually begins with Thomas Hobbes, but it really begins earlier. When the Spanish friar Francisco de Vitoria sat down in Salamanca in 1532 to write De Indis — a treatise on the rights of the indigenous peoples of the Americas against the Spanish Crown — he had in front of him a question that was already several centuries old. Do the people of the New World possess natural rights that the Spanish conquerors are bound to respect? The conventional answer, of course, was no. The conventional answer is what Vitoria’s treatise was designed to overturn.

The doctrine of natural rights is the doctrine that human beings possess certain fundamental rights by virtue of their nature as human beings, and that these rights are not the gift of any government, any church, or any historical convention. The doctrine has a long prehistory — Stoic, Roman, medieval, and Spanish scholastic — but it was the seventeenth and eighteenth centuries that gave it the form that has shaped modern political thought. The contemporary doctrine of universal human rights, as embodied in documents such as the United Nations Universal Declaration of Human Rights (1948), is a direct descendant of the Enlightenment theory. Whether the descendant is a faithful one is a question the philosophers are still arguing about.

The prehistory: Stoa, Rome, Salamanca

The Stoics held that there is a natural law, accessible to human reason, that governs the universe and that binds all human beings, regardless of their nationality or social position. The Roman jurists developed this idea into a theory of ius naturale — a law of nature that established the basic principles of justice and that was binding on all human communities. The Digest of Justinian, compiled in the sixth century, contains the formulation: ius naturale est, quod natura omnia animalia docuit — natural right is what nature has taught all animals. The medieval canon lawyers, drawing on the Stoic and Roman traditions, developed a theory of natural rights that was closely connected to the Christian doctrine of the equal worth of all human souls before God.

The Spanish scholastics of the sixteenth century — Vitoria, Domingo de Soto, Francisco Suárez, and their successors — gave the theory its first systematic modern form. They argued, against the conventional justifications of the Spanish conquest, that the indigenous peoples of the Americas possessed natural rights that the Spanish conquerors were bound to respect. They developed a theory of just war that was designed to limit the violence of the colonial enterprise. They argued that natural law was binding on all human communities, including the communities of the New World. The argument was not a defense of indigenous equality in the modern sense — most of the Spanish scholastics still held that the pope had temporal authority over the New World, and that the Spanish Crown had a legitimate role in evangelization. But the argument was the first sustained modern attempt to use the language of natural rights to limit the exercise of political power.

The point worth pausing on is that the Spanish scholastics were not Enlightenment liberals. They were Catholic theologians, working within a framework that most of the eighteenth-century philosophes would have found congenial in some respects and alien in others. The natural-rights tradition is not, accordingly, a specifically Protestant or secularist invention. It is a tradition with a long and varied history, and the attempts to trace it to a single origin — Lockean, individualist, secular — are misleading.

Grotius and the secularization of the natural law

Hugo Grotius (1583–1645) is the figure most often credited with the foundation of the modern theory of natural rights. His De Jure Belli ac Pacis of 1625 developed a comprehensive account of natural law and natural rights that was based on a striking methodological move: the natural law would be valid, Grotius said, “even if we were to concede, what cannot be conceded without the utmost wickedness, that there is no God, or that the affairs of men are of no concern to him.” The point of the sentence is that the foundations of natural law are not theological. They are accessible to human reason, on the basis of the common rational nature of human beings, and they do not depend on divine revelation.

This was a small sentence with large consequences. It established the autonomy of natural law with respect to divine revelation, and it made possible the subsequent secularization of the natural-rights tradition. The seventeenth-century natural-rights theorists — Hobbes, Locke, Pufendorf, Barbeyrac — all worked in the framework that Grotius had established. The eighteenth-century declarations of rights — the American, the French, and the long sequence of documents in the wake of them — all worked in that framework too. The sentence is the kind of theoretical move that is more important for what it makes possible than for what it says.

The two English versions: Hobbes and Locke

The two most important seventeenth-century natural-rights theorists are Hobbes and Locke, and they developed very different versions of the theory.

Hobbes (1588–1679), in the Leviathan (1651), argued that the natural state of human beings is a state of war, in which life is “solitary, poor, nasty, brutish, and short.” In the state of nature, every human being has a right to everything, including the body and the property of others. The natural rights are the rights that each individual has to preserve his own life and to use whatever means are necessary for self-preservation. To escape the state of nature, individuals enter into a contract in which they transfer their natural rights to a sovereign authority whose commands they will obey. The sovereign is not a party to the contract; the individuals have no right of resistance.

The Hobbesian theory is the foundation of the modern theory of legitimate political authority, but it is also the theory that most subsequent natural-rights theorists have tried to escape from. The reason is that Hobbes’s natural rights — the right to self-preservation, the right to use whatever means are necessary for self-preservation — are not the rights that we usually mean by “natural rights.” They are not the rights of life, liberty, and property that Locke was to develop. They are, in fact, a strange mixture of the pre-political right to do whatever one wants and the post-political obligation to obey the sovereign. The result is a theory in which the natural right to self-preservation is preserved, but in which the natural rights to liberty and property are, in effect, transferred to the sovereign. The theory is consistent, but it is not what most natural-rights theorists have meant by the phrase.

Locke (1632–1704), in the Two Treatises of Government (1689), developed the version of the natural-rights theory that has been most influential in the English-speaking world. Locke argued that, in the state of nature, human beings are free and equal, and they possess natural rights — to life, liberty, and property — that are anterior to any government and that no government can legitimately violate. The proper function of government is to protect these rights; the government that violates them is acting illegitimately and can be resisted or overthrown.

The Lockean theory is the foundation of the American and French revolutions and of the modern tradition of constitutional government. The natural rights are not the gift of the government; they are the condition of its legitimacy. The government that fails to protect them forfeits its claim to obedience. This is the strong version of the theory, and it is the version that has been most influential in the modern doctrine of human rights.

The two theories are not, however, as different as the standard textbook presentation suggests. Both begin with the state of nature and the contract; both end with a theory of legitimate political authority; both use the language of natural rights; and both were developed in part as a response to the same set of problems — the problem of religious conflict, the problem of the proper basis of political authority, the problem of the right of resistance against tyranny. The differences between them are real, but the differences are within a shared framework. The framework is the contractarian framework, and the framework is the modern invention.

The declarations of rights

The natural-rights theory was the theoretical foundation of the great political revolutions of the late eighteenth century.

The American Declaration of Independence (1776) is the founding document of the American republic, and it is the most concise statement of the natural-rights theory in any modern state paper. “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, that among these are Life, Liberty and the pursuit of Happiness.” The Declaration was drafted primarily by Thomas Jefferson, and it draws directly on Locke. The phrase “the pursuit of Happiness” replaces Locke’s “property,” and the change is significant: Locke’s “property” was understood to include life and liberty, and the substitution of “the pursuit of Happiness” was designed to make the list of rights more comprehensive. The Declaration then argues that governments are instituted to secure these rights and derive their powers from the consent of the governed. When a government becomes destructive of these ends, the people have the right to alter or abolish it.

The French Declaration of the Rights of Man and of the Citizen (1789) was a direct descendant of the American Declaration, but it was more thoroughgoing in its commitment to the principles of natural rights. Drafted by the Marquis de Lafayette with input from Jefferson (who was then the American minister in Paris), the Declaration proclaimed the rights of “liberty, property, security, and resistance to oppression” as the natural and imprescriptible rights of man. The principles of the Declaration — the equality of all citizens before the law, the right to participate in the formation of laws, the freedom of speech and of the press, the protection against arbitrary arrest and punishment — became the basic principles of the modern constitutional state. The French Declaration was the founding document of the French Revolution, and it became one of the great manifestos of the modern human rights tradition.

The extension: from the eighteenth to the twentieth century

The natural-rights tradition was gradually extended, over the course of the nineteenth and twentieth centuries, to include groups that had been excluded by the original theorists. The extensions are themselves a major part of the story.

The abolition of slavery. The British abolition of the slave trade in 1807 and of slavery itself in 1833, the American abolition of slavery in 1865, the Brazilian abolition of slavery in 1888, and the various other abolition movements of the nineteenth century were all justified in terms of the natural rights of the enslaved. The argument that the natural rights of human beings could not be reconciled with the institution of slavery was one of the great practical applications of the natural-rights theory. The argument was, of course, available already in 1776 and in 1789; the gap between the abstract affirmation of natural rights and the practice of slavery is one of the great moral scandals of the modern period, and it is worth pausing on. The natural-rights theory was the framework within which the abolitionists worked; the natural-rights theory was also the framework within which the slaveholders justified themselves. The point is that the theory does not, by itself, settle any contested question; it sets the terms within which the question is to be argued.

The rights of women. Mary Wollstonecraft’s Vindication of the Rights of Woman (1792) was the first major feminist engagement with the natural-rights tradition, and it was followed by a long series of feminist works that argued for the extension of natural rights to women. The contemporary recognition of women’s rights as human rights is a direct descendant of this tradition. The argument was, in substance, the same argument that the abolitionists had used: the natural rights of human beings cannot be reconciled with the exclusion of women from the rights of citizenship.

The rights of workers. The labor movements of the nineteenth and twentieth centuries, the development of the welfare state, and the contemporary recognition of economic and social rights as human rights are all descendants of the natural-rights tradition, although they often involved significant modifications of the original liberal framework. The original natural-rights theorists had been primarily concerned with civil and political rights; the late-nineteenth- and twentieth-century extensions added economic, social, and cultural rights to the list. The addition was controversial — the classical liberal tradition had been suspicious of positive rights, on the ground that they require active state intervention and that the obligation to provide them is less clear than the obligation to respect the negative rights. The contemporary position is that the distinction between negative and positive rights is less sharp than the classical liberals had supposed, and that the protection of negative rights often requires positive state action.

The rights of national and ethnic groups. The decolonization movements of the twentieth century, the civil rights movements in the United States and elsewhere, and the contemporary recognition of the rights of indigenous peoples are all descendants of the natural-rights tradition, although they also involved new ideas that the original theorists had not anticipated. The contemporary doctrine of collective rights — the rights of peoples, of nations, of ethnic and religious minorities — is a major extension of the original doctrine, and the extension is still being negotiated.

The Universal Declaration of Human Rights

The culmination of the natural-rights tradition in the twentieth century was the Universal Declaration of Human Rights (1948), adopted by the United Nations General Assembly on December 10, 1948. The Declaration was drafted by a committee chaired by Eleanor Roosevelt, and it drew directly on the language and the structure of the eighteenth-century natural-rights documents. The Declaration proclaims a comprehensive catalogue of civil, political, economic, social, and cultural rights, and it affirms the principle that these rights are universal — that they apply to all human beings, regardless of nationality, race, religion, sex, or any other status.

The rights enumerated in the Declaration include civil and political rights (the right to life, liberty, and the security of person; the right to freedom from slavery and torture; the right to recognition as a person before the law; the right to freedom of movement; the right to asylum; the right to a nationality; the right to marry and to found a family; the right to own property; the right to freedom of thought, conscience, and religion; the right to freedom of opinion and expression; the right to peaceful assembly and association; the right to take part in the government of one’s country; the right to equal access to public service) and economic, social, and cultural rights (the right to work; the right to equal pay for equal work; the right to just and favourable conditions of work; the right to form and to join trade unions; the right to rest and leisure; the right to an adequate standard of living; the right to education; the right to participate in the cultural life of the community; the right to social security).

The Declaration is not legally binding, but it has had an enormous moral and political influence. The many international human rights treaties that have been developed since 1948 — the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and many others — are all descendants of the Universal Declaration, and they have established a comprehensive international human rights regime that did not exist before the twentieth century.

The four great critiques

The natural-rights tradition has been criticized from many directions, both in the eighteenth century and since. The critiques are not equally persuasive, but they are all worth understanding.

The conservative critique, developed by Edmund Burke and the other counter-revolutionary writers, attacked the abstract rationalism of the natural-rights tradition and defended a politics rooted in tradition, custom, and prescription. Burke’s Reflections on the Revolution in France (1790) is the founding text. The conservatives argued that the appeal to abstract natural rights is a dangerous abstraction that ignores the actual conditions of political life, and that the proper political life is one that respects the inherited institutions of a particular community. The argument is not without force; the abstract appeal to natural rights has often been used to justify the destruction of particular institutions without much concern for what would replace them.

The Marxist critique, developed in the nineteenth and twentieth centuries, argued that the natural-rights tradition is a bourgeois ideology that serves to disguise the realities of class domination. The natural rights, in Marx’s view, are nothing more than the rights of the bourgeois, and the appeal to universal rights is a way of disguising the particular interests of the propertied classes. The argument is sharp, and it has a substantial empirical content: the history of the natural-rights tradition is, in many ways, the history of the gradual extension of rights to groups that had been excluded, and the extension has usually followed, rather than preceded, changes in the underlying relations of production.

The feminist critique, developed in the late twentieth century, argued that the natural-rights tradition is based on a false universalism that excluded women. The natural-rights theorists, with their focus on the white male property owner, had developed a theory of natural rights that ignored the specific forms of oppression that women experienced, and the appeal to universal rights served to disguise the realities of gender domination. The argument is well established in the historical literature, and it has been one of the sources of the contemporary emphasis on the intersectionality of oppression.

The postcolonial critique, developed in the late twentieth and early twenty-first centuries, argued that the natural-rights tradition is closely connected to the European colonial enterprise. The appeal to universal natural rights, in this view, is a way of justifying the European domination of the non-European world, and the natural-rights tradition needs to be understood in the context of the colonial history of the modern period. The argument has been developed in different ways by different writers, and it has been the subject of substantial scholarly debate. The argument is not without force — the European empires did use the language of natural rights to justify their conquests — but the argument is also not a simple refutation of the tradition. The postcolonial critics have generally been careful to distinguish between the natural-rights tradition as a set of theoretical commitments and the natural-rights tradition as a set of historical practices.

The continuing significance

Despite the many critiques, the natural-rights tradition remains one of the central traditions of modern political thought. The basic commitment of the tradition — to the principle that all human beings possess certain fundamental rights by virtue of their nature as human beings — has become a basic principle of contemporary international law and contemporary moral discourse. The tradition is not the only tradition in modern political thought, and it has been substantially modified by the various critiques. But it is the tradition that the modern human rights regime most directly invokes, and it is the tradition that the various critiques have had to engage with. The debate about the proper foundation, scope, and limits of natural rights is one of the central debates of contemporary political thought, and it is a debate in which the original theorists — Vitoria, Grotius, Hobbes, Locke, the authors of the American and French declarations — are still active participants.