What Are Rights?
Individuals have rights. But are they natural? And how do they compare and contrast with legal or constitutional rights? Are legal or constitutional rights similar to those inalienable rights mentioned in the Declaration of Independence? Professor Aeon Skoble distinguishes such constitutional rights, such as the right to vote, from the rights protected by governments and constitutions—natural rights not actually granted by governments themselves. He concludes that legal systems should create rights that are compatable with natural rights.
- The Philosophy of Liberty (Video): An ISIL classic animated video on the philosophy of liberty and self-ownership.
- Rights [Article]: Leif Wenar provides an excellent overview of rights, including critiques, categories, and history.
- Natural Law and Natural Rights [Article]: An excellent collection of essays and articles provided by the Online Library of Liberty.
- Second Treatise of Government [Book]: John Locke's seminal defense of a classical liberal political system based on the rights of life, liberty, and property.
What are natural rights? Well what are rights in the first place? Most generally, rights are moral concepts that establish the conditions within which we interact. When we say you can’t do that, we might mean that it’s literally impossible to do it, but we might also mean simply that to do it would be wrong. When we invoke rights, we’re insisting on a certain kind of interaction not because another kind is impossible but because another kind would be wrong. That’s why we can speak of violating someone’s rights. You can’t make a round square means it can’t be done. You can’t kill Fred means it would be wrong to do it. But do we have natural rights? By nature we have spleens. If you cut me open you would find my spleen, but you wouldn’t find any of my rights. So let’s see if we can figure out what natural rights might be.
If you watch any TV at all, you probably know that you have the right to remain silent and to have an attorney present during questioning—but not if you live in North Korea. The famous right to remain silent is a legal right. It’s a feature of the legal system we happen to have. People in other countries may or may not have the right to an attorney. Similarly, if you’re 18 you have the right to vote but not if you were 18 in the 1960s. In 1971 the Constitution was amended to extend voting rights to 18-year-olds who had previously not enjoyed that right. A few years later, 18–year-olds lost the right to drink beer. These are examples of legal rights or constitutional rights.
We have whatever legal rights the lawmakers say we have, and they can change at any time. But the Declaration of Independence refers to inalienable rights. Those aren’t the sort of things that can change. Are there any such things? Because we get legal rights from the lawmakers, people sometimes make the mistake of saying that rights come from the government. But when the American colonists declared independence from Britain they got rid of their government. Did that mean that they no longer had rights? Nope. That’s the whole point. They thought they had rights that didn’t come from the government.
Although constitutional rights are products of constitutions, the rebellious colonists thought that the right to live and be free was a right that we had by nature and the point of even having a government at all was to protect those rights, protecting rights we already have.
This is the essence of classical liberalism and the revolutions it inspired. In the old days, people claimed that kings ruled by divine authority, so the king’s rule was natural. Rights were permissions from the king, an artificial construct. To the classical liberal way of thinking, the right to live and be free is natural, and governments are artificial—institutions created to help protect or enforce those rights. So it turns the old model completely around, literally a revolution.
But why should we think there’s a natural right to live and be free? One way to think about it is this. Is it your natural condition to exist only as a means of sustenance to another organism, or do you have an independent existence? We’re all Homo sapiens. The old model had us thinking that the so called nobility were literally a better breed of person naturally suited to rule over the so called commoners whose inferior dispositions made them suitable only to serve. I’m pretty sure that’s not true. What do you think?
So if the right to live and be free is natural, then governments are doing well when they protect your rights and doing wrong when they violate your rights. As much as possible, then, the legal system should create rights that are compatible with and don’t contradict your natural rights.