Natural and legal rights

Natural and legal rights are two types of rights. Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal and inalienable (they cannot be repealed or restrained by human laws). Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws).

The concept of natural law is related to the concept of natural rights. Natural law first appeared in ancient Greek philosophy,[1] and was referred to by Roman philosopher Cicero. It was subsequently alluded to in the Bible,[2] and then developed in the Middle Ages by Catholic philosophers such as Albert the Great and his pupil Thomas Aquinas. During the Age of Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.

The idea of human rights is also closely related to that of natural rights: some acknowledge no difference between the two, regarding them as synonymous, while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights.[3] Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is an important legal instrument enshrining one conception of natural rights into international soft law. Natural rights were traditionally viewed as exclusively negative rights,[4] whereas human rights also comprise positive rights.[5] Even on a natural rights conception of human rights, the two terms may not be synonymous.

The proposition that animals have natural rights is one that gained the interest of philosophers and legal scholars in the 20th century and into the 21st.[6]

History

The idea that certain rights are natural or inalienable also has a history dating back at least to the Stoics of late Antiquity and Catholic law of the early Middle Ages, and descending through the Protestant Reformation and the Age of Enlightenment to today.

The existence of natural rights has been asserted by different individuals on different premises, such as a priori philosophical reasoning or religious principles. For example, Immanuel Kant claimed to derive natural rights through reason alone. The United States Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are … endowed by their Creator with certain unalienable Rights".[7]

Likewise, different philosophers and statesmen have designed different lists of what they believe to be natural rights; almost all include the right to life and liberty as the two highest priorities. H. L. A. Hart argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. T. H. Green argued that “if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life.”[8] John Locke emphasized "life, liberty and property" as primary. However, despite Locke's influential defense of the right of revolution, Thomas Jefferson substituted "pursuit of happiness" in place of "property" in the United States Declaration of Independence.

Ancient

Stephen Kinzer, a veteran journalist for The New York Times and the author of the book All The Shah's Men, writes in the latter that:

The Zoroastrian religion taught Iranians that citizens have an inalienable right to enlightened leadership and that the duty of subjects is not simply to obey wise kings but also to rise up against those who are wicked. Leaders are seen as representative of God on earth, but they deserve allegiance only as long as they have farr, a kind of divine blessing that they must earn by moral behavior.

The Stoics held that no one was a slave by nature; slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca the Younger wrote:

It is a mistake to imagine that slavery pervades a man's whole being; the better part of him is exempt from it: the body indeed is subjected and in the power of a master, but the mind is independent, and indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is confined.[9]

Of fundamental importance to the development of the idea of natural rights was the emergence of the idea of natural human equality. As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature."[10] Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it."[11] Cicero argues in De Legibus that "we are born for Justice, and that right is based, not upon opinions, but upon Nature."[12]

Modern

One of the first Western thinkers to develop the contemporary idea of natural rights was French theologian Jean Gerson, whose 1402 treatise De Vita Spirituali Animae is considered one of the first attempts to develop what would come to be called modern natural rights theory.[13]

Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage"[14] re-emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:

Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly. As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of every one's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force.[15]

17th-century English philosopher John Locke discussed natural rights in his work, identifying them as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the Virginia Declaration of Rights, "all men are born equally free," and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity."[16] Another 17th-century Englishman, John Lilburne (known as Freeborn John), who came into conflict with both the monarchy of King Charles I and the military dictatorship of Oliver Cromwell governed republic, argued for level human basic rights he called "freeborn rights" which he defined as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.

The distinction between alienable and unalienable rights was introduced by Francis Hutcheson. In his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the Declaration of Independence, stating: “For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. . . . Unalienable Rights are essential Limitations in all Governments.” Hutcheson, however, placed clear limits on his notion of unalienable rights, declaring that “there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest publick Good."[17] Hutcheson elaborated on this idea of unalienable rights in his A System of Moral Philosophy (1755), based on the Reformation principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable." Hutcheson wrote: "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."[18]

In the German Enlightenment, Hegel gave a highly developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. According to Hegel, the same would not apply to those aspects that make one a person:

The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them.[19]

In discussion of social contract theory, "inalienable rights" were said to be those rights that could not be surrendered by citizens to the sovereign. Such rights were thought to be natural rights, independent of positive law. Some social contract theorists reasoned, however, that in the natural state only the strongest could benefit from their rights. Thus, people form an implicit social contract, ceding their natural rights to the authority to protect the people from abuse, and living henceforth under the legal rights of that authority.

Many historical apologies for slavery and illiberal government were based on explicit or implicit voluntary contracts to alienate any "natural rights" to freedom and self-determination.[20] The de facto inalienability arguments of Hutcheson and his predecessors provided the basis for the anti-slavery movement to argue not simply against involuntary slavery but against any explicit or implied contractual forms of slavery. Any contract that tried to legally alienate such a right would be inherently invalid. Similarly, the argument was used by the democratic movement to argue against any explicit or implied social contracts of subjection (pactum subjectionis) by which a people would supposedly alienate their right of self-government to a sovereign as, for example, in Leviathan by Thomas Hobbes. According to Ernst Cassirer,

There is, at least, one right that cannot be ceded or abandoned: the right to personality...They charged the great logician [Hobbes] with a contradiction in terms. If a man could give up his personality he would cease being a moral being. … There is no pactum subjectionis, no act of submission by which man can give up the state of free agent and enslave himself. For by such an act of renunciation he would give up that very character which constitutes his nature and essence: he would lose his humanity.[21]

These themes converged in the debate about American Independence. While Jefferson was writing the Declaration of Independence, Richard Price in England sided with the Americans' claim "that Great Britain is attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title."[22]:67 Price again based the argument on the de facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which gives us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause."[22]:67–68 Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:

Neither can any state acquire such an authority over other states in virtue of any compacts or cessions. This is a case in which compacts are not binding. Civil liberty is, in this respect, on the same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practise, so neither can any civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property.[22]:78–79

Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and again restated the de facto basis for the argument that the "liberty of men as agents is that power of self-determination which all agents, as such, possess."[23] In Intellectual Origins of American Radicalism, Staughton Lynd pulled together these themes and related them to the slavery debate:

Then it turned out to make considerable difference whether one said slavery was wrong because every man has a natural right to the possession of his own body, or because every man has a natural right freely to determine his own destiny. The first kind of right was alienable: thus Locke neatly derived slavery from capture in war, whereby a man forfeited his labor to the conqueror who might lawfully have killed him; and thus Dred Scott was judged permanently to have given up his freedom. But the second kind of right, what Price called "that power of self-determination which all agents, as such, possess," was inalienable as long man remained man. Like the mind's quest for religious truth from which it was derived, self-determination was not a claim to ownership which might be both acquired and surrendered, but an inextricable aspect of the activity of being human.[24]

Meanwhile, in America, Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important",[25] and in the 1776 United States Declaration of Independence, famously condensed this to:

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...

In the 19th century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U.S. constitution recognized and protected slavery. As a lawyer, future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van Zandt, who had been charged with violating the Fugitive Slave Act, that:

The law of the Creator, which invests every human being with an inalienable title to freedom, cannot be repealed by any interior law which asserts that man is property.

The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke, writing in 18th century Britain, claimed that rights arise from the actions of government, or evolve from tradition, and that neither of these can provide anything inalienable. (See Bentham's "Critique of the Doctrine of Inalienable, Natural Rights", and Burke's Reflections on the Revolution in France). Presaging the shift in thinking in the 19th century, Bentham famously dismissed the idea of natural rights as "nonsense on stilts". By way of contrast to the views of British nationals Burke and Bentham, the leading American revolutionary scholar James Wilson condemned Burke's view as "tyranny."[26]

The signers of the Declaration of Independence deemed it a "self-evident truth" that all men "are endowed by their Creator with certain unalienable Rights". In The Social Contract, Jean-Jacques Rousseau claims that the existence of inalienable rights is unnecessary for the existence of a constitution or a set of laws and rights. This idea of a social contract – that rights and responsibilities are derived from a consensual contract between the government and the people – is the most widely recognized alternative.

One criticism of natural rights theory is that one cannot draw norms from facts.[27] This objection is variously expressed as the is-ought problem, the naturalistic fallacy, or the appeal to nature. G.E. Moore, for example, said that ethical naturalism falls prey to the naturalistic fallacy. Some defenders of natural rights theory, however, counter that the term "natural" in "natural rights" is contrasted with "artificial" rather than referring to nature. John Finnis, for example, contends that natural law and natural rights are derived from self-evident principles, not from speculative principles or from facts.[27]

There is also debate as to whether all rights are either natural or legal. Fourth president of the United States James Madison, while representing Virginia in the House of Representatives, believed that there are rights, such as trial by jury, that are social rights, arising neither from natural law nor from positive law (which are the basis of natural and legal rights respectively) but from the social contract from which a government derives its authority.[28]

Thomas Hobbes

Thomas Hobbes (1588–1679) included a discussion of natural rights in his moral and political philosophy. Hobbes' conception of natural rights extended from his conception of man in a "state of nature". Thus he argued that the essential natural (human) right was "to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own judgement, and Reason, he shall conceive to be the aptest means thereunto." (Leviathan. 1, XIV)

Hobbes sharply distinguished this natural "liberty", from natural "laws", described generally as "a precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving his life; and to omit, that, by which he thinketh it may best be preserved." (Leviathan. 1, XIV)

In his natural state, according to Hobbes, man's life consisted entirely of liberties and not at all of laws – "It followeth, that in such a condition, every man has the right to every thing; even to one another's body. And therefore, as long as this natural Right of every man to every thing endureth, there can be no security to any man... of living out the time, which Nature ordinarily allow men to live." (Leviathan. 1, XIV)

This would lead inevitably to a situation known as the "war of all against all", in which human beings kill, steal and enslave others in order to stay alive, and due to their natural lust for "Gain", "Safety" and "Reputation". Hobbes reasoned that this world of chaos created by unlimited rights was highly undesirable, since it would cause human life to be "solitary, poor, nasty, brutish, and short". As such, if humans wish to live peacefully they must give up most of their natural rights and create moral obligations in order to establish political and civil society. This is one of the earliest formulations of the theory of government known as the social contract.

Hobbes objected to the attempt to derive rights from "natural law," arguing that law ("lex") and right ("jus") though often confused, signify opposites, with law referring to obligations, while rights refer to the absence of obligations. Since by our (human) nature, we seek to maximize our well being, rights are prior to law, natural or institutional, and people will not follow the laws of nature without first being subjected to a sovereign power, without which all ideas of right and wrong are meaningless – "Therefore before the names of Just and Unjust can have place, there must be some coercive Power, to compel men equally to the performance of their Covenants..., to make good that Propriety, which by mutual contract men acquire, in recompense of the universal Right they abandon: and such power there is none before the erection of the Commonwealth." (Leviathan. 1, XV)

This marked an important departure from medieval natural law theories which gave precedence to obligations over rights.

John Locke

John Locke (1632 – 1704) was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke believed in a natural right to life, liberty, and property. It was once conventional wisdom that Locke greatly influenced the American Revolutionary War with his writings of natural rights, but this claim has been the subject of protracted dispute in recent decades. For example, the historian Ray Forrest Harvey declared that Jefferson and Locke were at "two opposite poles" in their political philosophy, as evidenced by Jefferson’s use in the Declaration of Independence of the phrase "pursuit of happiness" instead of "property."[29] More recently, the eminent[30] legal historian John Phillip Reid has deplored contemporary scholars’ "misplaced emphasis on John Locke," arguing that American revolutionary leaders saw Locke as a commentator on established constitutional principles.[31][32] Thomas Pangle has defended Locke's influence on the Founding, claiming that historians who argue to the contrary either misrepresent the classical republican alternative to which they say the revolutionary leaders adhered, do not understand Locke, or point to someone else who was decisively influenced by Locke.[33] This position has also been sustained by Michael Zuckert.[34][35][36]

According to Locke there are three natural rights:

  • Life: everyone is entitled to live.[37]
  • Liberty: everyone is entitled to do anything they want to so long as it doesn't conflict with the first right.
  • Estate: everyone is entitled to own all they create or gain through gift or trade so long as it doesn't conflict with the first two rights.

In developing his concept of natural rights, Locke was influenced by reports of society among Native Americans, whom he regarded as natural peoples who lived in a "state of liberty" and perfect freedom, but "not a state of license".[38] It also informed his conception of social contract.

The social contract is an agreement between members of a country to live within a shared system of laws. Specific forms of government are the result of the decisions made by these persons acting in their collective capacity. Government is instituted to make laws that protect these three natural rights. If a government does not properly protect these rights, it can be overthrown.

Thomas Paine

Thomas Paine (1731–1809) further elaborated on natural rights in his influential work Rights of Man (1791), emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect – that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. … They...consequently are instruments of injustice.

The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

American individualist anarchists

While at first American individualist anarchists adhered to natural rights positions, later in this era led by Benjamin Tucker, some abandoned natural rights positions and converted to Max Stirner's Egoist anarchism. Rejecting the idea of moral rights, Tucker said there were only two rights: "the right of might" and "the right of contract". He also said, after converting to Egoist individualism, "In times past... it was my habit to talk glibly of the right of man to land. It was a bad habit, and I long ago sloughed it off.... Man's only right to land is his might over it."[39]

According to Wendy McElroy:

In adopting Stirnerite egoism (1886), Tucker rejected natural rights which had long been considered the foundation of libertarianism. This rejection galvanized the movement into fierce debates, with the natural rights proponents accusing the egoists of destroying libertarianism itself. So bitter was the conflict that a number of natural rights proponents withdrew from the pages of Liberty in protest even though they had hitherto been among its frequent contributors. Thereafter, Liberty championed egoism although its general content did not change significantly.[40]

Several periodicals were "undoubtedly influenced by Liberty's presentation of egoism, including I published by C.L. Swartz, edited by W.E. Gordak and J.W. Lloyd (all associates of Liberty); The Ego and The Egoist, both of which were edited by Edward H. Fulton. Among the egoist papers that Tucker followed were the German Der Eigene, edited by Adolf Brand, and The Eagle and The Serpent, issued from London. The latter, the most prominent English-language egoist journal, was published from 1898 to 1900 with the subtitle 'A Journal of Egoistic Philosophy and Sociology'".[40] Among those American anarchists who adhered to egoism include Benjamin Tucker, John Beverley Robinson, Steven T. Byington, Hutchins Hapgood, James L. Walker, Victor Yarros and E.H. Fulton.[40]

Contemporary

Many documents now echo the phrase used in the United States Declaration of Independence. The preamble to the 1948 United Nations Universal Declaration of Human Rights asserts that rights are inalienable: "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." Article 1, § 1 of the California Constitution recognizes inalienable rights, and articulated some (not all) of those rights as "defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." However, there is still much dispute over which "rights" are truly natural rights and which are not, and the concept of natural or inalienable rights is still controversial to some.

Erich Fromm argued that some powers over human beings could be wielded only by God, and that if there were no God, no human beings could wield these powers.[41]

Contemporary political philosophies continuing the classical liberal tradition of natural rights include libertarianism, anarcho-capitalism and Objectivism, and include amongst their canon the works of authors such as Robert Nozick, Ludwig von Mises, Ayn Rand,[42] and Murray Rothbard.[43] A libertarian view of inalienable rights is laid out in Morris and Linda Tannehill's The Market for Liberty, which claims that a man has a right to ownership over his life and therefore also his property, because he has invested time (i.e. part of his life) in it and thereby made it an extension of his life. However, if he initiates force against and to the detriment of another man, he alienates himself from the right to that part of his life which is required to pay his debt: "Rights are not inalienable, but only the possessor of a right can alienate himself from that right – no one else can take a man's rights from him."[44]

Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability.[45] This concept has been recognized by libertarians as being central to the question of voluntary slavery, which Murray Rothbard dismissed as illegitimate and even self-contradictory.[46] Stephan Kinsella argues that "viewing rights as alienable is perfectly consistent with – indeed, implied by – the libertarian non-aggression principle. Under this principle, only the initiation of force is prohibited; defensive, restitutive, or retaliatory force is not."[47]

Various philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to separate truly axiomatic rights from supposed rights, stating that any principle that requires itself to be disproved is an axiom. Critics have pointed to the lack of agreement between the proponents as evidence for the claim that the idea of natural rights is merely a political tool.

Hugh Gibbons has proposed a descriptive argument based on human biology. His contention is that Human Beings were other-regarding as a matter of necessity, in order to avoid the costs of conflict. Over time they developed expectations that individuals would act in certain ways which were then prescribed by society (duties of care etc.) and that eventually crystallized into actionable rights.[48]

See also

References

  1. ^ Rommen, Heinrich A., The Natural Law: A Study in Legal and Social Philosophy trans. Thomas R. Hanley, O.S.B., Ph.D. (B. Herder Book Co., 1947 [reprinted 1959] ), p.. 5
  2. ^ Romans 2:14–15
  3. ^ Jones, Peter. Rights. Palgrave Macmillan, 1994, p. 73.
  4. ^ For example, the imperative "not to harm others" is said to be justified by natural law, but the same is not true when it comes to providing protection against harm
  5. ^ See James Nickel, Human Rights, 2010. The claim that "..all human rights are negative rights.." is rejected, therefore human rights also comprise positive rights.
  6. ^ "Animal Rights", Encyclopædia Britannica, 2007; Dershowitz, Alan. Rights from Wrongs: A Secular Theory of the Origins of Rights, 2004, pp. 198–99; "Animal Rights: The Modern Animal Rights Movement", Encyclopædia Britannica, 2007.
  7. ^ "America's Founding Documents | National Archives". Archives.gov. 2016-10-12. Retrieved 2017-03-10.
  8. ^ Lectures on the Principles of Political Obligation, T. H. Green, 1883, p.114.
  9. ^ Seneca, De beneficiis, III, 20.
  10. ^ Carlyle, A.J. (1903). A History of Medieval Political Theory in the West. 1. Edinburgh. pp. 8, 9.
  11. ^ McIlwain, Charles H. (1932). The Growth of Political Thought in the West: From the Greeks to the End of the Middle Ages. New York. pp. 114–15.
  12. ^ Cicero, De Legibus (Keyes translation), book 1, section 28.
  13. ^ Richard Tuck, Philosophy and Government 1572–1651 (1993), pp. 25-7.
  14. ^ Davis, David Brion. The Problem of Slavery in Western Culture. Cornell University Press, 1966, p. 77.
  15. ^ Martin Luther, Concerning Secular Authority, 1523.
  16. ^ Pauline Maier,American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf, 1993, p. 134.
  17. ^ Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises (Indianapolis, 2004), pp. 192, 193.
  18. ^ Hutcheson, Francis. A System of Moral Philosophy. London, 1755, pp. 261–2.
  19. ^ Georg W. F. Hegel, Hegel's Philosophy of Right, T.M. Knox, trans., New York: Oxford University Press, 1967 (1821), section 66.
  20. ^ Philmore, J. 1982. The Libertarian Case for Slavery: A Note on Nozick. Philosophical Forum. XIV (Fall 1982): 43–58.
  21. ^ Cassirer, Ernst. The Myth of the State. Yale University Press, 1963, p. 175
  22. ^ a b c Price, Richard. Observations on the Nature of Civil Liberty. 1776, Part I. Reprinted in: Peach, Bernard, (Ed.) Richard Price and the Ethical Foundations of the American Revolution. Duke University Press, 1979.
  23. ^ Price, Richard. Additional Observations on the Nature and Value of Civil Liberty. Reprinted in: Peach, Bernard, (Ed.) Richard Price and the Ethical Foundations of the American Revolution. Duke University Press, 1979, p. 136.
  24. ^ Lynd, Staughton. Intellectual Origins of American Radicalism. Vintage Books, 1969, pp. 56–57.
  25. ^ Garry Wills, 1979. Inventing America. New York: Vintage Books, p. 213
  26. ^ Wilson, James. Robert Green McCloskey, ed. The Works of James Wilson. 2. Cambridge, Mass.: Harvard University Press. pp. 586–89.
  27. ^ a b Finnis, John (2011). Natural Law & Natural Rights. Oxford: Oxford University Press. pp. 23–58.
  28. ^ Introduction of the Bill of Rights in Congress, 1789 Jun 8, Jul 21, Aug 13, 18–19; Annals 1:424-50, 661–65, 707–17, 757–59, 766.
  29. ^ Harvey, Ray Forrest (1937). Jean Jacques Burlamaqui: A Liberal Tradition in American Constitutionalism. Chapel Hill, N.C. p. 120.
  30. ^ Law As Culture and Culture As Law: Essays in Honor of John Phillip Reid Books.google.co.kr. Retrieved on 2013-07-29.
  31. ^ Reid, John Phillip (1987). Constitutional History of the American Revolution: The Authority To Tax. Madison, Wis. pp. 135–36.
  32. ^ Reid, John Phillip (1986). Constitutional History of the American Revolution: The Authority of Rights. Madison, Wis. pp. 132–33.
  33. ^ Pangle, Thomas L. (1988). The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of John Locke. Chicago: University of Chicago Press.
  34. ^ Zuckert, Michael P. (1996). The Natural Rights Republic: Studies in the Foundation of the American Political Tradition. South Bend, Ind.: University of Notre Dame Press.
  35. ^ Zuckert, Michael P. (1998). Natural Rights and the New Republicanism. Princeton: Princeton University Press.
  36. ^ Zuckert, Michael P. (2002). Launching Liberalism: On Lockean Political Philosophy. Lawrence: University Press of Kansas.
  37. ^ Kunze, Fred. "A Biography of John Locke". American History from revolution to reconstruction and beyond. GMW – University of Groningen. Retrieved 20 July 2015.
  38. ^ John Locke, Two Treatises of Government - Of Civil Government, Bk.2, Chap 2, "On The State of Nature", §4,6,14, Chap 5, "Of Property", §26 (London : Whitmore & Fenn) 1821 pp. 189, 191, 199, 209.
  39. ^ Tucker, Instead of a Book, p. 350
  40. ^ a b c "Literature of Liberty, Autumn 1981, vol. 4, No. 3 – Online Library of Liberty". Oll.libertyfund.org. Retrieved 2017-03-10.
  41. ^ Erich Fromm (1973), The Revolution of Hope: Toward a Humanized Technology, New York: Bantam.
  42. ^ Individual Rights – Ayn Rand Lexicon. Aynrandlexicon.com. Retrieved 2013-07-29.
  43. ^ "The Ethics of Liberty | Mises Institute". Mises.org. 2005-07-20. Retrieved 2017-03-10.
  44. ^ "Man and Society". The Market for Liberty. p. 11.
  45. ^ Block, Walter (Spring 2003). "A Libertarian Theory of Inalienability" (PDF). 17 (2). Journal of Libertarian Studies: 39–85.
  46. ^ "A Crusoe Social Philosophy | Mises Institute". Mises.org. Retrieved 2017-03-10.
  47. ^ "Inalienability and Punishment: A Reply to George Smith | Mises Institute" (PDF). Mises.org. 2014-07-30. Retrieved 2017-03-10.
  48. ^ "De Sciuridae Et Homo Sapiens: The Origin Of Rights And Duties" (PDF). Bu.edu. Retrieved 2017-03-10.

Further reading

  • Fruehwald, Edwin, A Biological Basis of Rights, 19 Southern California Interdisciplinary Law Journal 195 (2010).
  • Grotius, Hugo, The Rights Of War And Peace: Three Volume Set, 1625
  • Haakonssen, Knud, Grotius, Pufendorf and Modern Natural Law, 1999
  • Hutcheson, Francis. A System of Moral Philosophy. 1755, London.
  • Locke, John. Two Treatises of Government. 1690 (primarily the second treatise)
  • Lloyd Thomas, D.A. Locke on Government. 1995, Routledge. ISBN 0-415-09533-6
  • Pufendorf, Baron Samuel von, Law of Nature and Nations, 1625
  • Tuck, Richard, Natural Rights Theories: Their Origin and Development, 1982
  • Waldron, Jeremy [ed.] Theories of Rights 1984, Oxford University Press. ISBN 0-19-875063-3

External links

Agorism

Agorism is a libertarian social philosophy that advocates creating a society in which all relations between people are voluntary exchanges by means of counter-economics, thus engaging with aspects of peaceful revolution. It was first proposed by libertarian philosopher Samuel Edward Konkin III (1947–2004) at two conferences, CounterCon I in October 1974 and CounterCon II in May 1975.

Chilling effect

In a legal context, a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction. The right that is most often described as being suppressed by a chilling effect is the US constitutional right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is called libel chill. A lawsuit initiated specifically for the purpose of creating a chilling effect may be called a Strategic Lawsuit Against Public Participation ("SLAPP").

"Chilling" in this context normally implies an undesirable slowing. Outside the legal context in common usage; any coercion or threat of coercion (or other unpleasantries) can have a chilling effect on a group of people regarding a specific behavior, and often can be statistically measured or be plainly observed. For example, the news headline "Flood insurance [price] spikes have chilling effect on some home sales," and the abstract title of a two‐part survey of 160 college students involved in dating relationships: "The chilling effect of aggressive potential on the expression of complaints in intimate relationships."

Civil and political rights

Civil and political rights are a class of rights that protect individuals' freedom from infringement by governments, social organizations, and private individuals. They ensure one's entitlement to participate in the civil and political life of the society and state without discrimination or repression.

Civil rights include the ensuring of peoples' physical and mental integrity, life, and safety; protection from discrimination on grounds such as race, gender, sexual orientation, national origin, color, age, political affiliation, ethnicity, religion, and disability; and individual rights such as privacy and the freedom of thought, speech, religion, press, assembly, and movement.

Political rights include natural justice (procedural fairness) in law, such as the rights of the accused, including the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.

Civil and political rights form the original and main part of international human rights. They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social, and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be "first-generation rights", and the theory of negative and positive rights considers them to be generally negative rights.

Civil libertarianism

Civil libertarianism is a strain of political thought that supports civil liberties, or which emphasizes the supremacy of individual rights and personal freedoms over and against any kind of authority (such as a state, a corporation, social norms imposed through peer pressure and so on). Civil libertarianism is not a complete ideology—rather, it is a collection of views on the specific issues of civil liberties and civil rights.

Consequentialist libertarianism

Consequentialist libertarianism (also known as libertarian consequentialism or consequentialist liberalism, in Europe) refers to the libertarian position that is supportive of a free market and strong private property rights only on the grounds that they bring about favorable consequences, such as prosperity or efficiency.

Emancipation

Emancipation is any effort to procure economic and social rights, political rights or equality, often for a specifically disenfranchised group, or more generally, in discussion of such matters. Emancipation stems from ēx manus capere ('detach from the hand'). Among others, Karl Marx discussed political emancipation in his 1844 essay "On the Jewish Question", although often in addition to (or in contrast with) the term human emancipation. Marx's views of political emancipation in this work were summarized by one writer as entailing "equal status of individual citizens in relation to the state, equality before the law, regardless of religion, property, or other 'private' characteristics of individual people.""Political emancipation" as a phrase is less common in modern usage, especially outside academic, foreign or activist contexts. However, similar concepts may be referred to by other terms. For instance, in the United States the Civil Rights Movement culminated in the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968 can be seen as further realization of events such as the Emancipation Proclamation and abolition of slavery a century earlier. In the current and former British West Indies islands the holiday Emancipation Day is celebrated to mark the end of the Atlantic slave trade.

Geolibertarianism

Geolibertarianism is a political and economic ideology that integrates libertarianism with Georgism (alternatively geoism or geonomics), most often associated with left-libertarianism or the radical center.Geolibertarians hold that geographical space and raw natural resources—any assets that qualify as land by economic definition—are rivalrous goods to be considered common property or more accurately unowned, which all individuals share an equal human right to access, not capital wealth to be privatized fully and absolutely. Therefore, landholders must pay compensation according to the rental value decided by the free market, absent any improvements, to the community for the civil right of usufruct (that is, legally recognized exclusive possession with restrictions on property abuse) or otherwise fee simple title with no such restrictions. Ideally, the taxing of a site would be administered only after it has been determined that the privately captured economic rent from the land exceeds the title-holder's equal share of total land value in the jurisdiction. On this proposal, rent is collected not for the mere occupancy or use of land as neither the community nor the state rightfully owns the commons, but rather as an objectively assessed indemnity due for the legal right to exclude others from that land. Some geolibertarians also support Pigovian taxes on pollution and severance taxes to regulate natural resource depletion and compensatory fees with ancillary positive environmental effects on activities which negatively impact land values. They endorse the standard right-libertarian view that each individual is naturally entitled to the fruits of their labor as exclusive private property as opposed to produced goods being owned collectively by society or by the government acting to represent society, and that a person's "labor, wages, and the products of labor" should not be taxed. Along with non-Georgists in the libertarian movement, they also support law of equal liberty, advocating "full civil liberties, with no crimes unless there are victims who have been invaded".Geolibertarians are generally influenced by the Georgist single tax movement of the late-19th and early-20th centuries, but the ideas behind it pre-date Henry George and can be found in different forms in the writings of John Locke, the English True Levellers or Diggers such as Gerrard Winstanley, the French Physiocrats (particularly Quesnay and Turgot), Adam Smith, David Ricardo, Jean-Baptiste Say, Frédéric Bastiat, Thomas Jefferson, Thomas Paine, Lysander Spooner, Benjamin Tucker, John Stuart Mill, Herbert Spencer and Thomas Spence. Prominent geolibertarians since George have included Albert Jay Nock, Frank Chodorov and Milton Friedman(on consequentialist grounds). Other libertarians who have expressed support for the land value tax as an incremental reform include John Hospers, Karl Hess and United States Libertarian Party co-founder David Nolan.

International Alliance of Libertarian Parties

The International Alliance of Libertarian Parties (IALP) is an alliance of right-libertarian political parties across the world. Its mission is to promote libertarian politics internationally. The IALP has 21 members as of 2018.At the 2014 Libertarian National Convention in the United States, former chairman of the Libertarian National Committee Geoff Neale was appointed to help with the creation of an alliance of global Libertarian parties. On March 6, 2015 the IALP was formed with 9 founding members.

Labour Tribunal

Labour Tribunals are tribunals in Sri Lanka formed under the Industrial Disputes Act No.62 of 1957, to handle labour disputes and termination of employment.

Limited government

In political philosophy, limited government is where the government is empowered by law from a starting point of having no power, or where governmental power is restricted by law, usually in a written constitution. It is a key concept in the history of liberalism. The United States Constitution presents an example of the federal government not possessing any power except what is delegated to it by the Constitution — with the Tenth Amendment to the United States Constitution making explicit that powers not specifically delegated to the federal government are reserved for the people and the states.

The Magna Carta and the United States Constitution also represents important milestones in the limiting of governmental power. The earliest use of the term limited government dates back to King James VI and I in the late 16th century. Limited government put into practice often involves the protection of individual liberty from government intrusion.

Natural-rights libertarianism

Natural-rights libertarianism, also known as deontological libertarianism, philosophical libertarianism, deontological liberalism, rights-theorist libertarianism, natural rights-based libertarianism, or libertarian moralism, refers to the view that all individuals possess certain natural or moral rights, mainly a right of individual sovereignty and that therefore acts of initiation of force and fraud are rights-violations and that is sufficient reason to oppose those acts. This is one of the two ethical view points within right-libertarianism, the other being consequentialist libertarianism which only takes into account the consequences of actions and rules when judging them and holds that free markets and strong private property rights have good consequences.Deontological libertarianism is based on the non-aggression principle which states that no human being holds the right to initate force or fraud against the person or property of another human being under any circumstances. Deontological libertarians consider this principle to be the basis of all morality and therefore believe that any violation of the principle is immoral, no matter what other arguments may be invoked to justify that violation.

Neo-libertarianism

Neo-libertarianism is a political and social philosophy that is a combination of libertarian principles with modern liberal principles.

Paleolibertarianism

Paleolibertarianism is a variety of libertarianism developed by anarcho-capitalist theorists Murray Rothbard and Llewellyn Rockwell that combines conservative cultural values and social philosophy with a libertarian opposition to government intervention.

Prisoners' rights

The rights of civilian and military prisoners are governed by both national and international law. International conventions include the International Covenant on Civil and Political Rights; the United Nations' Minimum Rules for the Treatment of Prisoners, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of Persons with Disabilities.

Social contract

In moral and political philosophy, the social contract is a theory or model that originated during the Age of Enlightenment and usually concerns the legitimacy of the authority of the state over the individual. Social contract arguments typically posit that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority (of the ruler, or to the decision of a majority) in exchange for protection of their remaining rights or maintenance of the social order. The relation between natural and legal rights is often a topic of social contract theory. The term takes its name from The Social Contract (French: Du contrat social ou Principes du droit politique), a 1762 book by Jean-Jacques Rousseau that discussed this concept. Although the antecedents of social contract theory are found in antiquity, in Greek and Stoic philosophy and Roman and Canon Law, the heyday of the social contract was the mid-17th to early 19th centuries, when it emerged as the leading doctrine of political legitimacy.

The starting point for most social contract theories is an examination of the human condition absent of any political order (termed the "state of nature" by Thomas Hobbes). In this condition, individuals' actions are bound only by their personal power and conscience. From this shared starting point, social contract theorists seek to demonstrate why a rational individual would voluntarily consent to give up their natural freedom to obtain the benefits of political order. Prominent of 17th- and 18th-century theorists of social contract and natural rights include Hugo Grotius (1625), Thomas Hobbes (1651), Samuel von Pufendorf (1673), John Locke (1689), Jean-Jacques Rousseau (1762) and Immanuel Kant (1797), each approaching the concept of political authority differently. Grotius posited that individual humans had natural rights. Thomas Hobbes famously said that in a "state of nature", human life would be "solitary, poor, nasty, brutish and short". In the absence of political order and law, everyone would have unlimited natural freedoms, including the "right to all things" and thus the freedom to plunder, rape and murder; there would be an endless "war of all against all" (bellum omnium contra omnes). To avoid this, free men contract with each other to establish political community (civil society) through a social contract in which they all gain security in return for subjecting themselves to an absolute sovereign, one man or an assembly of men. Though the sovereign's edicts may well be arbitrary and tyrannical, Hobbes saw absolute government as the only alternative to the terrifying anarchy of a state of nature. Hobbes asserted that humans consent to abdicate their rights in favor of the absolute authority of government (whether monarchical or parliamentary). Pufendorf disputed Hobbes's equation of a state of nature with war. Alternatively, Locke and Rousseau argued that we gain civil rights in return for accepting the obligation to respect and defend the rights of others, giving up some freedoms to do so.

The central assertion that social contract theory approaches is that law and political order are not natural, but human creations. The social contract and the political order it creates are simply the means towards an end—the benefit of the individuals involved—and legitimate only to the extent that they fulfill their part of the agreement. Hobbes argued that government is not a party to the original contract and citizens are not obligated to submit to the government when it is too weak to act effectively to suppress factionalism and civil unrest. According to other social contract theorists, when the government fails to secure their natural rights (Locke) or satisfy the best interests of society (called the "general will" by Rousseau), citizens can withdraw their obligation to obey, or change the leadership through elections or other means including, when necessary, violence. Locke believed that natural rights were inalienable, and therefore the rule of God superseded government authority, while Rousseau believed that democracy (self-rule) was the best way to ensure welfare while maintaining individual freedom under the rule of law. The Lockean concept of the social contract was invoked in the United States Declaration of Independence. Social contract theories were eclipsed in the 19th century in favor of utilitarianism, Hegelianism and Marxism; they were revived in the 20th century, notably in the form of a thought experiment by John Rawls.

Universality (philosophy)

In philosophy, universality is the idea that universal facts exist and can be progressively discovered, as opposed to relativism. In certain theologies, universalism is the quality ascribed to an entity whose existence is consistent throughout the universe, whose being is independent of and unconstrained by the events and conditions that compose the universe, such as entropy and physical locality.

This article also discusses Kantian and Platonist notions of "universal", which are considered by most philosophers to be separate notions.

Voluntaryism

Voluntaryism (UK: , US: ; sometimes voluntarism ) is a philosophy which holds that all forms of human association should be voluntary, a term coined in this usage by Auberon Herbert in the 19th century, and gaining renewed use since the late 20th century, especially among libertarians. Its principal beliefs stem from the non-aggression principle.

Wrongdoing

A wrong (from Old English wrang – crooked) is an act that is illegal or immoral. Legal wrongs are usually quite clearly defined in the law of a state and/or jurisdiction. They can be divided into civil wrongs and crimes (or criminal offences) in common law countries, while civil law countries tend to have some additional categories, such as contraventions.

Moral wrong is an underlying concept for legal wrong. Some moral wrongs are punishable by law, for example, rape or murder. Other moral wrongs have nothing to do with law. On the other hand, some legal wrongs, such as parking offences, could hardly be classified as moral wrongs.

Yosef Tekoah

Yosef Tekoah (Hebrew: יוסף תקוע‎, 4 March 1925 – 14 April 1991) was a senior Israeli diplomat and the President of the Ben-Gurion University of the Negev (1975–1981). Historian Avi Shlaim stated that he "could always be relied on [by Israel and the IDF] to produce legal arguments to justify even the most outrageous Israeli actions," and that "in his view the basic function of Israeli diplomacy was to service the country's security needs." He was instrumental in the Israeli settlement in disputed DMZ territories with Syria, serving as one of David Ben-Gurion's favorite diplomats.Tekoah was born in Lyakhavichy, Poland as Yosef Tukaczynski. At the age of five he emigrated with his family to Harbin, due to the rise of fascism in his homeland. Some time after the Fall of Harbin to the Imperial Japanese Army, Tekoah's family moved to Shanghai for financial purposes. He had a Doctorate in international relations from Harvard University, where he also taught and Master's degree in Natural and legal rights from Aurora University.

In 1948 he made Aliyah, changed his name to Tekoah and started working for the Ministry of Foreign Affairs, where he met his wife, Ruth Tekoah.

During his work in the Israeli Ministry of Foreign Affairs, Tekoah appointed for several positions:

The Israel Foreign Ministry legal adviser (1949–1953)

Head of Armistice Affairs in the Israeli Ministry of Foreign Affairs (1954–1958)

Deputy and Acting Head of the Israeli delegation to the UN (1958–1960)

The Israeli Ambassador to Brazil (1960–1962)

The Israeli Ambassador to the Soviet Union (1962–1965)

VP of the Israeli Foreign Ministry (1965–1967)

Permanent Representative of Israel to the United Nations (1968–1975)Tekoah died in 1991 in New York City after a Heart attack.

Tekoah knew fluent Hebrew, English, Russian, French, Portuguese, and Chinese.

Rights theory
Fundamental concepts
and philosophies
Organizations
By continent
Related
By owner
By nature
Commons
Theory
Applications
Disposession/
redistribution
Scholars
(key work)

This page is based on a Wikipedia article written by authors (here).
Text is available under the CC BY-SA 3.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.