Regular readers will be aware that for some time I have been questioning the idea of natural rights. Natural rights are rights (things to which we are entitled) that are God-given, inalienable, a priori (independent of circumstance) as opposed to positive rights that arise from specific laws and may vary from jurisdiction to jurisdiction.
Most people who question rights do so from the perspective of positivism or a Benthamite antipathy to transcendence, both of which situate natural rights-denial with some type of political leftism. The affirmation of natural rights, on the other hand, is usually associated with conservatism since natural rights, being pre-legal, act as a hedge against the bloated power of the state. So it may seem strange for me, as a conservative, to question the existence of natural rights. Moreover, it may seem even stranger that the grounds of my rights-skepticism is derived from the seminal texts of our conservative tradition. Yet I remain convinced that to be truly conservative, we must recognize the entire ecosystem of natural rights is fake, regardless of whatever utility value it may or may not possess for various activist agendas.
My skepticism about natural rights began while researching Edmund Burke for my publication Saints and Scoundrels (Canon Press, 2012). I followed the release of that book with a January 2013 article for my old blog titled “Natural Rights vs. Legal Rights.” In that article, I offered a theological critique of natural rights, and I made the following observation:
“But do natural rights even exist? I don’t think so.The problem with natural rights is that they hinge on certain theories of self-ownership that we are hard pressed to find in scripture. If natural rights really do exist, then God would be required to adhere to them, and yet God restricts our life, liberty and property all the time. From a scriptural point of view, it seems that we don’t have the right to anything, at least not in an a priori sense.Even those who espouse natural rights allow that there are circumstances in which the state has the duty to restrict someone’s liberty (as in the case of a convicted criminal) or even take away a person’s life (as in the case of a convicted murderer). What does this establish other than that whatever we may wish to call a ‘natural right’ is really contingent on a host of other factors and circumstances? This, incidentally, is exactly what Burke argues in his Reflections on the Revolution in France.
I did not think much more about natural rights until recently, and I even had a brief period of believing that natural rights existed after reading Hadley Arkes’ excellent book Natural Rights and the Right to Choose. But when COVID-19 came to America, various debates forced me to look closer at the question. Specifically, in the libertarian atmosphere of North Idaho, I began hearing that state-enforced mask-mandates were a violation of natural rights, and thus a form of tyranny. I documented some of these conversations in my article ‘15 questions about masks and conservative values.’ As I pointed out in that article, it was routine to hear people making appeals to natural rights as a way of short-circuiting the complex ethical and political questions that ought properly to have been our focus when grappling with the difficult questions raised by the pandemic.
After writing out my 15 questions, I decided to look closer at the question of natural rights. Since by then I was writing a weekly column for Salvo, I was able to use my column to fund additional research on the basic question: do natural rights exist? I shared some of my research in my March 12th article “Paine-fully Conservative?Remembering “Rights of Man” and the Original Left-Right Divide.” In that article, I suggested that the leftist philosophy of Thomas Paine (1737-1809) now forms the taken-for-granted background for both liberals and conservatives. From Paine we get the idea that rights can be considered in the abstract, irrespective of their contingencies in time and place.
“Paine advocated an individualistic notion of freedom, where liberty and human rights are understood a priori. We call a truth a priori (lit. “prior to experience”) when it is deduced from first principles rather than from experience or tradition—if it is self-evident rather than rooted in external considerations.
In the anti-traditional atmosphere of the French Enlightenment of the 1750s, the philosophes had developed a fixation with a priori truths. Their ambitious Encyclopédie project used abstract theories about the human condition (specifically, theories about equality, individualism, natural rights, and social contract) as a foundation for a series of prescriptions on how society and politics should unfold. Thomas Jefferson, who had been schooled in the French Enlightenment, reflected the cultural mood in the Declaration, with its primary appeal to self-evident truths and its merely secondary appeal to external considerations….
Because Paine believed our basic rights are true a priori, it followed that political wisdom is not about prudential reasoning in the context of tradition and lived experience; rather, it is about uncovering principles that are necessarily true at all times and places. Once these principles are identified, society has an obligation to enforce them regardless of consequences in time and space.
In the same article, I went on to contrast this theory of rights with the teaching of Edmund Burke (1729-1797), the father of Conservatism.
“For Burke, rights and freedoms are very real, as evidenced by the fact that he spent most of his parliamentary career defending underdogs in a series of lost causes. Yet Burke did not believe human rights and freedoms exist in a vacuum abstracted from our lived experiences in time and space. Liberty is not an a priori right but the product of tradition, family, and faith. It is passed on in much the same way as property is transmitted, from one generation to another as an inheritance. For Burke, a truly free society is not one of atomized individualism, where entitlement to rights exists in isolation from the flourishing of the whole. Rather, freedom, goodness, and rights are shared qualities that must be pursued communally and protected through proper order.”
Having contrasted these two thinkers, I raised the following two questions:
“In the COVID-era controversies, when we talk about ‘the rights of the individual,’ and ‘my right not to be told what to do,’ do we mean it in a Burkean sense, where liberty is communal and political reasoning must be specific to the contingencies of time and space? Or have we drifted unthinkingly toward Thomas Paine, where my-right-to-this-and-that exists prior to the realities of society’s health and heritage?”
I ended that article by saying that I would be exploring these questions through additional field work and interviews. After this additional work, I published a follow-up article for my column, titled “Rethinking Rights: Questioning Natural Rights With Edmund Burke.” Here I delved more deeply into Burke’s conservative critique of natural rights.
“Considered in the abstract, Burke argued, the natural rights of man are absolute and thus ‘admit of no taming and no compromise.’ As such, natural rights lead to a utopian disregard for human contingency. What Burke called ‘the real rights of man’ are not natural at all, but a posteriori, the product of community, tradition, and prudential reasoning.
Burke anticipated the 20th century recapitulation of ancient Virtue Ethics, which emphasizes that tradition is the context for ethics in much the same way as language is the context for thought. It is in the actual context of lived experience, not abstract principles, that we discover whether rights or freedoms are actually virtuous for an individual and a community. From Burke’s Reflections on the Revolution in France: ‘I cannot stand forward and give praise or blame to anything which relates to human actions and human concerns on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind.’
I encourage my readers to check out that article, and especially the videos that I embedded at the end. One of the videos was from the Christian ethicist Nigel Biggar, who laid out with remarkable clarity the practical and philosophical problems attendant in the theory of natural rights. (You can also watch this video by going to my blog post from June, “Do Natural Rights Exist?“)
For anyone wishing to delve deeper into these discussions, I highly recommend the article that my friend, Dr. Brad Littlejohn, published with The American Conservative, titled, “How ‘Rights Talk’ Became Fake.” Littlejohn’s article is a review of Biggar’s book, but he also adds to the discussion through his unique ability to distill important concepts into a very readable form.
In the article, Littlejohn points out that the vacuous theory of natural rights does an extreme disservice by crowding out the language of duty and virtue. A case in point is the ethical debate we saw in the wake of COVID-19:
“…the language of rights tends to crowd out the language of duty and virtue, encouraging a fractious, individualistic society in which each is focused on claiming everything they possibly can, and not on what might benefit the whole. Rights are treated as self-justifying, and we forget the larger purposes that they are meant to serve. Such solipsism has been particularly evident on the right during the COVID-19 pandemic, as many conservatives have imagined that the mere assertion of their “rights” should automatically trump public health mandates. (The point is not that these mandates were all unobjectionable, simply that the vacuous assertion of rights was too often used as a substitute for developing persuasive objections.) This danger is great enough when we are speaking only of legal rights, but is far worse when we invoke natural rights. For it is simply not the case that there can be a natural moral right to do something that is wrong. Legally, I may have a right to publish or say almost anything I like, in the sense that the law immunizes me from suit or prosecution in all but a very small number of cases. Morally, however, I cannot ordinarily claim a right to slander or deceive; my natural right to “freedom of speech” extends no further than my natural duty to speak virtuously. When conservatives lose sight of this, we allow society to degenerate into a mutual war of self-assertion, rather than an ordered common pursuit of the good.”
Littlejohn also points out that the theory of natural rights encourages a “rights-fundamentalism” that is naïve in its aspirations and applications:
“What Biggar calls ‘rights-fundamentalism’ encourages naïve utopianism that wreaks havoc on the difficult business of patient, prudent political decision-making. It encourages us to forget that we live in a world of scarce resources, limited means, and finite willpower. This becomes obvious when we encounter such absurd human rights claims as the International Covenant on Economic, Social, and Cultural Rights’s 1966 assertion of a universal right to “periodic holidays with pay.” This may well be a desirable political and economic goal, but to assert it as a fundamental right is to imply that any society that fails to guarantee it has committed some moral dereliction of duty, regardless of their practical limitations. But this is even true of more basic rights, such as the right to a fair trial. If all we mean is that every society should do its best to administer justice as justly as possible, that is no doubt true, but only because it is a truism. If we mean that the accused must have a legal counsel, what do we make of societies or circumstances where that is simply not practically possible? “In circumstances where there is no responsible and capable agent to supply a ‘right’,” we are forced to conclude, ‘the ‘weak’ citizens have no right at all,’ Biggar writes. He reminds us of the essential conservative insight that there is no doing away with tragedy: we live in a world where sometimes the weak or even the innocent suffer, but that is not always someone’s fault, contra the moralistic finger-wagging of human rights zealots.”
Another point that Littlejohn brought to light, which he again gets from Biggar, is that natural rights have the potential to erode national sovereignty.
“Of particular interest in our age of resurgent nationalism, rights language encourages a dangerous erosion of sovereignty: the sovereignty of nations and indeed of all human communities. Why? Well, as just noted, to assert a universal right is to insist that someone somewhere (or perhaps everyone everywhere?) is responsible to deliver the right in question. If all human beings have a right to adequate food and shelter, and their own government lacks the means to secure these goods, then some other nation must be morally bound to step in. This might make sense in the abstract, but exactly how much is Britain, for instance, bound to divert resources from its own people to build houses for Ugandans? And what if the Ugandans would rather not find themselves dependent on Britain’s largesse? The natural logic of universal rights is toward universal government—super-states that are prepared to override the decisions of sovereign states by telling them exactly the lengths they must go to secure human rights around the globe. Biggar dedicates chapter 10 of What’s Wrong with Rights? to analyzing the appalling track record of the European Court of Human Rights in blithely presuming to tell the British Army exactly what it must do to protect the rights of its soldiers and its enemies in the heat of combat.”
Littlejohn adds that rights-fundamentalism leads to judicial tyranny:
Rights-fundamentalism goes hand-in-hand with judicial tyranny. The more we imagine that all moral and political questions rest upon fundamental, inalienable human rights, the more we take all moral and political decision-making out of the public and place it in the hands of unelected judges. The task of politics is a deliberative one: a delicate balancing of various goods that we might achieve against various claims we must respect in the face of fragile and variable political will, striving for an all-things-considered way of securing the maximum good that limited means allows. When judges seek to short-circuit—or worse, override—such deliberation by grandly announcing that they have discovered a new fundamental right that the people’s representatives have failed to safeguard, they not only act beyond their competence, but strain the fragile fabric of society and undermine democratic legitimacy. Biggar highlights in this connection the Canadian Supreme Court’s 2015 discovery of a right to euthanasia, but our own American experience affords us ample examples of this deranged rights-activism in Roe, Obergefell, and Bostock.
I really encourage you to read Littlejohn’s article in full.
At this point, readers may want to know if it is possible to reject the excesses of “rights fundamentalism,” while still preserving a proper sense of natural rights. After all, abusus non tollit usum.
This is a question I addressed in my aforementioned Salvo article, “Rethinking Rights.” I’ll leave you with these previous thoughts.
“By questioning the very existence of natural rights, aren’t we engaged in a massive exercise of throwing the baby out with the bathwater?
I’m afraid that in this case there is no baby to preserve, only bathwater. From a Christian point of view, there is no doubt that we must affirm that some things are true a priori. In his address “Why I am not a Pacifist” in The Weight of Glory, C.S. Lewis showed that the laws of logic fall into the category of being necessarily true prior to experience. Moral absolutes also have an a priori character, as do most truths of mathematics. But are human rights like this?
Let us consider what it would really mean to say, for example, that “the right to private property” is a natural a priori right. That would mean that our right to property exists independently of all considerations about other human beings, and independently to how our exercise of this right impacts human and natural resources. Moreover, if the right to private property is really a natural right, then this would be as true in a migratory society as in an agricultural society, as true for a desert oasis as a forest. It is not clear how such a right is even meaningful, let alone useful. The same complications occur with other, so called, natural rights. The right to life can be abrogated through the legitimate wielding of the sword, and the right to free movement can be withdrawn in the case of prisoners, and so forth. When you factor in all the exceptions that advocates of natural rights are bound to acknowledge, then such rights die the death of a thousand qualifications. And even if natural rights are meaningful, it is not clear what methodology we could even use for verifying their existence.
From a conservative perspective, the goals that rights-language tries to preserve would better be obtained by talking about natural law and natural duties, private and public virtue, prudence, individual and communal flourishing, contingent rights granted by our tradition (i.e., the Constitution), and, last but not least, the Lordship of Jesus Christ.”