Natural Rights vs Legal Rights: Understanding the Distinction

The distinction between natural rights and legal rights is one of the most important conceptual distinctions in modern political thought. Natural rights are the rights that human beings possess by virtue of their nature as human beings, independent of any human laws or institutions. Legal rights are the rights that are recognized and protected by the laws of particular political communities. The two kinds of rights are related, but they are not identical, and the distinction between them has been one of the central themes of modern political philosophy. This article examines the distinction, the theoretical foundations of each, and the contemporary significance of the distinction.

The Concept of Natural Rights

The concept of natural rights has a long history, going back to the ancient Stoics, the Roman jurists, and the medieval canon lawyers. The modern theory of natural rights was developed in the seventeenth and eighteenth centuries by writers such as Hugo Grotius, Samuel Pufendorf, John Locke, and the American and French revolutionaries.

The basic claim of the natural-rights tradition is that human beings possess certain fundamental rights by virtue of their nature as human beings. These rights are not granted by governments or by human conventions; they inhere in the human person, and they cannot legitimately be violated by any government.

The natural rights, in the Lockean tradition, include the rights to life, liberty, and property. These rights are universal, in that they apply to all human beings regardless of their nationality, religion, or social position. They are also inalienable, in that they cannot legitimately be surrendered or transferred to another. Even when an individual enters into political society, he does not give up his natural rights; he continues to possess them, and the government that violates them is acting illegitimately.

The Concept of Legal Rights

Legal rights, by contrast, are the rights that are recognized and protected by the laws of particular political communities. Legal rights are the rights that the citizens of a particular state have under the law of that state, and they are the rights that the courts and the police of that state are required to protect.

Legal rights can include many of the same interests that are protected by natural rights, but they are not identical to natural rights. Legal rights are contingent on the laws of particular states, and they can be created, modified, or abolished by the legislative process. Natural rights, on the other hand, are supposed to be anterior to any human laws, and they are supposed to be binding on all governments, regardless of the laws that they happen to enact.

The Relationship Between the Two

The relationship between natural rights and legal rights is one of the central problems of modern political philosophy. There are several different ways of understanding the relationship.

The first way is to see natural rights as the foundation of legal rights. On this view, the natural rights are the basic moral standards by which legal rights are to be evaluated, and a legal system that violates the natural rights is unjust. The natural rights serve, in this sense, as a kind of moral critique of the legal system, and they provide a standard by which the laws of particular states can be judged.

The second way is to see natural rights as the origin of legal rights. On this view, the legal rights of a particular state are derived from the natural rights of the individuals, and the proper function of the legal system is to protect and to give effect to the natural rights. The legal rights are, in this sense, the institutional expression of the natural rights.

The third way is to see natural rights as a fiction, and to reject the distinction between natural rights and legal rights. On this view, there are no natural rights in the proper sense; there are only legal rights, and the rights that human beings possess are the rights that are recognized and protected by the laws of the political communities in which they live. The defenders of this view, including David Hume and the various utilitarians and positivists, have argued that the concept of natural rights is philosophically confused, and that the proper basis of legal rights is the positive law of the state.

The Critiques of Natural Rights

The natural-rights tradition has been criticized from many directions.

The first critique is the positivist critique, developed by Hume and the various legal positivists of the nineteenth and twentieth centuries. The positivists argue that the concept of natural rights is philosophically confused, and that the proper basis of legal rights is the positive law of the state. The natural rights, on this view, are not real rights; they are merely moral claims that do not have the institutional support that is necessary to make them effective.

The second critique is the utilitarian critique, developed by Jeremy Bentham and the various utilitarian thinkers of the nineteenth century. The utilitarians argue that the proper basis of legal rights is the principle of utility, and that the concept of natural rights is incompatible with the proper understanding of the foundation of morality. The natural rights, on this view, are metaphysical fictions that obscure the real basis of moral and legal reasoning.

The third critique is the historical critique, developed by the various historicist thinkers of the nineteenth century. The historicists argue that rights are not natural but historical, and that the rights that human beings possess are the rights that have been developed in the course of the historical development of human societies. The natural rights, on this view, are abstractions that ignore the historical and cultural specificity of the actual rights that human beings possess.

The Contemporary Significance

The contemporary debate about natural rights is part of the broader debate about the proper foundations of morality, law, and politics. The natural-rights tradition has been an important source of the contemporary human rights movement, and the Universal Declaration of Human Rights (1948) and the various other international human rights instruments are, descendants of the natural-rights tradition.

The contemporary debate is shaped by a recognition of both the achievements and the limitations of the natural-rights tradition. The natural rights have been an important source of the modern commitment to the protection of individual rights, and they have been an important foundation of the modern human rights regime. At the same time, the various critiques of the natural-rights tradition have raised important questions about the proper foundation of the rights, and they have helped to produce a more nuanced and more critical understanding of the natural-rights tradition.

Further Reading

• The Stanford Encyclopedia of Philosophy (plato.stanford.edu), relevant entry
• Mark Goldie & Robert Wokler, eds., The Cambridge History of Eighteenth-Century Political Thought (2006)
• Terence Ball, Reappraising Political Theory (1995)