What Are 'Natural Rights'?
by Ari Armstrong, December 17, 2003
My recent essay challenging animal rights evoked a response that pushes me to further explain the notion of "natural rights."
In the previous essay, I wrote, "[T]he reason human beings have rights is that they are distinctly rational... People have the ability to conceptualize, to reason in a robust way, to communicate with others in a sophisticated and conceptual way, to cooperate with each other in a broad economic market that involves a division of labor, to contemplate and advocate for rights, and to create a complicated system of written rules and laws to resolve conflicts. All of these things are a part of what it means to be rational, and all of these things are impossible to (other) animals." I then quoted a lengthy explanation by Murray Rothbard of "natural" rights.
One anonymous reader replied, "I would totally disagree with you that the basis for human rights is the ability or potential for rationality. That's an arbitrary, human-devised (and self-serving) criteria... It would be just as logical to presume that the basis for human rights is that we are alive, and by extension rights should be afford to anything "alive." ... [Y]ou can never empirically prove the basis for human rights. It's certainly an irony for Rothbard (and others) to claim that human rights are premised upon 'natural rights' -- what kind of horse-shit is that? ... The irony comes in the invocation of the word 'natural' to divine rights to humans and exclude the rest of the 'natural' world... Human rights are a totally human devised scheme. Period. Trying to create a loftier basis (divinity or 'naturality') is just ego and a vestige of the out-dated belief in the supremacy of the human species."
Contrast this perspective with one presented in a December 5 guest column ("Marriage is a sacred institution") in the Denver Post by Tom Neven: "[A] lot of you are thinking that we cannot allow any religious concept to affect government policy. But we do it all the time. For example, the very concept of individual human rights is uniquely a creation of the Western, Judeo-Christian worldview, and without that underpinning, the word 'rights' becomes meaningless. (The Utilitarian philosopher Jeremy Bentham called talk of rights 'nonsense on stilts.') Rights become merely what the government deigns to give you, not what is inherently yours. Our form of government is based on this religious worldview -- which is what makes the recent court decision in Massachusetts [about gay marriage] so egregious... The judges ordered the commonwealth to rewrite millennia of law, tradition and religious teaching."
What both views have in common is they assume rights must either be based in religion or they must be socially constructed. The first view argues rights are social constructs, while the second view argues rights derive from "religious teaching." Both views deny that rights arise from the facts of the natural world. To apply the terminology favored by Ayn Rand, the first view sees rights as subjective, while the second sees rights as intrinsic, but intrincisism and subjectivism are co-dependent false theories, "two sides of the same coin."
But a natural-rights theory must overcome a number of important obstacles, some of which are mentioned in the quoted passages. As the letter writer suggests, historically there has been a link between religion and natural-rights theory. This is peculiar in that something that comes from God is nevertheless seen as being "natural." However, natural rights can sensibly be attached to religious beliefs, if one holds God created the natural world, and rights arise from that nature.
Obviously, those who reject the notion that God created the natural world can maintain a theory of natural rights. Let us consider the statement, "If God created the natural world, then we have natural rights." If we reject the premise, that says nothing about the conclusion. Similarly, this statement, with an obviously false premise, nevertheless contains a true conclusion: "If pigs have wings, then two plus two equals four."
Throughout history, people have abused natural-rights theory to rationalize all sorts of injustices, from slavery to sexism to genocide. However, just because a particular sort of theory has been abused, doesn't mean the sort of theory necessarily is invalid or bad. For example, many people have abused medicine over the years, yet we don't conclude the principles of medicine are socially constructed or based in religion. Instead, most of us maintain a theory of medicine rooted in the facts of the natural world.
Butler Shaffer has asked, "How can anything that exists be contrary to nature?" This leads to a profound critique of natural-rights theory. We can't reify rights: rights aren't something we can go out and touch "in nature." We can't conduct an autopsy and find a person's "rights," as we can find a heart or liver. Rocks are natural, people are natural, the sun is natural, but how can we reasonably claim that rights are natural?
Throughout the history of humanity, practically nobody has had his or her rights fully respected, at least not as libertarians conceive rights. To extend Shaffer's question, "How can something that doesn't exist be part of nature?" If rights truly were "natural," wouldn't everybody just have them in some existential sense? What can it mean to say people "have rights," when in fact those rights are rarely respected in the natural world? Instead, how people are treated has depended mostly on cultural norms, a fact that lends plausibility to the theory that rights are social constructs.
As I discussed briefly in my previous essay, the term "rights" picks up two distinct meanings. The first meaning is "legal rights," which means the actual legal protections we have in a given society. Note that our legal rights aren't always protected, either: murder is illegal but some people still commit murder. The second meaning is "natural rights," which means our rights that are somehow related to the natural world. Thus, when we say people "have rights," even when those "rights" are not protected by law, we mean people have natural rights.
It is entirely possible to drop the language of "natural rights," yet still retain the significance of that notion. When we say people have a natural right to something, we mean that people *should* have legal protections in this area, and other people *should* recognize and respect these rights. Thus, if we limited the use of the term "rights" to mean only "legal rights," we could differentiate between existing legal rights and ideal or normatively justified rights. Put another way, "natural rights" is a way of describing the way the legal code *should be*.
We are then left with two serious problems. First, how can we say the law *should* be any particular way? Second, how can we say rights are somehow related to the natural world?
Legal standards must be evaluated against some moral end. (The law is superfluous without some standard of morality.) If we held the dictator is the sole moral authority whose well-being is the highest aim of society, then we would believe the law *should* aim at protecting the ruler. If we held an ordered society is valuable in its own right, then we would believe the law *should* protect social order. Most of us believe the well-being of individual human beings is the proper goal of law. (I believe this view can be justified, though I won't attempt to justify it here.) We like laws against murder and theft because we don't want to be murdered or robbed, nor do we want to see other people suffer.
A theory of "natural rights" claims that the nature of the world gives rise to an appropriate theory as to how the law can best accomplish its assumed moral end (which I'll assume is the well-being of individual human beings). Are there facts of reality that support one view of rights over another? It strikes me as obvious that there are.
As I noted in my previous essay, human beings are rational, and they employ conceptual and highly complex modes of communication. Human beings are capable of cooperation across a broad economic system and of writing and following a system of laws. These are facts of reality. We can conduct an autopsy and find the parts of the human brain, and the parts of the genetic code, responsible for conceptual communication. We can witness people all around us reasoning, communicating, participating in a global economy characterized by a division of labor, formulating laws, arguing about rights, and so forth.
Given the facts of human nature, is there a particular sort of social arrangement best for human well-being? Yes, it turns out. When people aren't running around killing and hurting each other, or taking the products of each other's labor by force, people are able to live more secure and more pleasant lives. That is, when the law is grounded in libertarian ideas, it best serves human welfare. The law works well or poorly, depending on whether the law meshes with the realities of human nature.
It is apparent that an advanced conceptual faculty is bound up with rights. Obviously, someone without such a faculty can't even consider what rights are. (I dealt with borderline cases in my previous essay.) Rights help us interact in a system of global trade in a peaceful, mutually beneficial way. Does it make any sense, then, to say other animals have rights? If human rights are dependent on the capacity to reason conceptually, what does this mean for animal rights? Surely there must be some positive argument put forth if the rights of other creatures are to be justified.
The writer of the letter suggests basing rights on rationality makes no more sense than basing rights on life. But a theory of law based merely on the fact of life would quickly reduce to absurdity, intellectually and in practice. If we have rights simply because we're alive, then wouldn't a fly and a bacterium also have rights because they are alive? Is it therefore immoral to swat a fly or take antibiotics? Obviously, we don't expect any animals other than humans to recognize or respect rights. Indeed, we recognize "survival of the fittest" as the natural state of the non-human world. Animals that cooperate as members of small groups do so from instinct and mutual advantage, not from any conceptual understanding of right or wrong.
I have suggested that the only way it might make sense to grant animals legal protections is in a limited way rooted to human welfare. Thus, we are straying a bit from rationality as the sole basis of rights, even as we recognize human rationality is what makes rights possible (even as a concept) and necessary for human civilization. But we do this with children, too. Small children do not have a conceptual understanding of the world (though they have the potential to develop one), yet we grant that children have rights. In some respects, we consider children to be the "property" of their parents, in that parents can determine basically where children can travel and, say, what time they have to go to bed. However, even though parents have the right to set policy for their children in many respects, this is not an unlimited right. We protect a child's right not be killed or injured or badly neglected.
It's not obvious why we can say non-rational children have some rights, but non-rational animals have no rights. It's possible to legally consider animals basically as property of humans, and still argue that animals have some limited rights that restrict how humans can treat them. I explained how this could be so in the previous essay. (I also explained how this in no way indicates a "speciesist" view, for we recognize other potential forms of life that would be granted full rights.)
That people have rights, and that these rights are based in nature, is a plausible theory that most people accept at some level. I have heard not a single person deny that rights are made possible by the human capacity for reason, given that only reasoning beings are capable of understanding and (intentionally) respecting rights. It's also clear that our ability to reason gives rise to our ability to cooperate peaceably with a (theoretically) unlimited number of other people, and that maintaining a cooperative society is the main purpose of legal rights. Where is the analogous justification for animal rights? I can see no sensible way to proceed other than the one I described previously.
The theory of natural rights, then, is not easy to nail down. Which rights, precisely, do we have? Do animals have any rights at all, and, if so, why and which ones? But at least a theory of natural rights is pointing to something in the real world, something that can be verified, at least potentially. This isn't the case with a theory of rights rooted in religion or social construction. If "you can never empirically prove the basis for human rights," as the letter writer claims, then how could we empirically prove the basis for any rights whatsoever? If rights are socially constructed, then how can we give moral force to an argument for or against any particular set of legal institutions?
Of course, one can argue for or against animal rights, and for or against gay marriage, within the context of natural rights theory. I believe that people have a natural right to cohabitate with whomever they choose, without state interference. I also believe people have a natural right to use animals for their own ends, at least so long as they don't inflict gratuitous harm on animals. (This view is perfectly compatible with private efforts to protect animals and create wildlife preserves.) Others will attempt to counter my beliefs with other natural-rights arguments. But a theory of rights based solely on a "human devised scheme" or "religious teaching" is bound to fall apart rather quickly.