Thomas Jefferson, The Declaration of Independence
Various
Bienvenue.
The question of rights is one that goes to the foundational core of this country. The United States was born of free men asserting their rights against a distant imperial power, which itself had changed the way in which the world viewed the rights of humankind. However, it seems that in the last several decades, a new wrinkle has been introduced to, or discovered in, this core idea. Increasingly, rights are discovered that go beyond those enumerated by Jefferson, those of “Life, Liberty, and the Pursuit of Happiness” — in other words, the right to be left alone. These newly discovered, or invented, rights entitle all men to a degree of material comfort, most recently in the case of health care. So what is it that makes health care less of a right than Life, Liberty, and the Pursuit of Happiness . . . if anything?
To address this question, we must address what, really, is a right. Broadly speaking, there are two sources of rights from which to choose: natural law and positive law. Natural law proposes that rights are derived transcendently; in other words, that they come from a source outside of man. Positive law, on the other hand, stipulates that rights are granted by human law itself — that they are grounded, not in a transcendent order, but in the civil law, or the Constitution and Bill of Rights themselves. The debate between natural and positive law is a powerful one, and more complicated than many think. Edmund Burke, for example, the early avatar of conservatism, leans heavily toward the positive law construct when he holds up the British constitution for emulation by the world on the basis that it is the work of countless minds over the course of centuries. In other words, the quality of the law is sufficient in and of itself to explain the rights granted therein. This model was presaged by the Utilitarian philosophy of Jeremy Bentham, who judged everything according to whether it provided the greatest good for the greatest number.
On the other hand, the Declaration and the Constitution were based explicitly upon the foundation of natural law. Theories of natural law have existed and changed through the ages. Leo Strauss, in his masterpiece Natural Right and History, distinguishes between classical and modern natural right. Classical natural right had several variations, but its main characteristic was that it held that humanity had a purpose — a telos, in philosophical terms — and that the rights of man were contingent upon achieving that purpose. In the case of Socrates, Plato, and Aristotle, this purpose was driven by nature, but in a different sense than we think about it today. In their thinking, Nature had a transcendent component as well as a physical one, and the end toward which humanity was driven was to become as closely united as possible with the transcendent natural Idea of humanity. In the case of Thomas Aquinas and of Averroes, the famed Muslim commentator of Aristotle, things were less complicated — humanity had such rights as were necessary to fulfill God’s plan. In either case, “right” was seen less in terms of liberty than of duty; people had the transcendent right to do what they needed to do for humanity to fulfill its purpose, but these ideas had little to do with personal liberty.
Modern natural right, on the other hand, was based on the scientific contemplation of man in the “state of nature,” a phrase coined by the man whom Strauss names as the progenitor of modern natural right — Thomas Hobbes. Mankind in the state of nature was irrelevant to the classic thinkers — to the Greeks, life in cities was the state of nature, and to Thomas and Averroes, humanity from its earliest beginnings had been subject to divine intervention. However, Hobbes’s thought experiment was to imagine mankind in the wild, like beasts; in the state of nature, he felt, the one right that someone could exercise, and which one would be fearful of losing, would be the right to life. To protect their lives, people ceded other rights to the more powerful among them in exchange for protection. Locke expanded this concept to include a less immediate demand for survival and thus a more gradual and relaxed social contract; his natural rights were those to life, the freedom to conduct one’s own affairs, and property. Furthermore, Locke, as a Christian, believed in the equality of all believers, and thus held that equality under the law was natural.
The argument of the positive law advocates against those of natural law was that always and everywhere, “natural rights” had been denied to people. If rights could be easily denied, they asked, in what respect were they “natural”? The natural law proponents returned that there could be no defensible “rights” per se in positive law, since they had no permanent basis and thus could be deprived on a whim. As shown above, the latter argument won over the Founders.
So how does all of this figure into the current argument? Simply put, from a natural right perspective, one of the few things that all natural right theorists, classical as well as modern, could agree upon is that no right can be imagined that did not initially exist in nature. Rights exist — they are not innovated. The right to defend one’s life, one’s liberty, one’s property — these are readily imaginable in nature. Indeed, they are readily observable when watching the behavior of animals. These rights could be ceded in some measure to the State in exchange for the order necessary to properly enjoy them. However, what right is found in nature to health care? More generally, what right is found in any respect to the property of another? To obtain someone else’s property or services for one’s own use in nature, one has to fight for it, which was exactly what the social contract was designed to avoid, or at least minimize.
So, in this respect, we have another irreducible disagreement with our friends on the Left. Obviously, the Left is more enamored of positive rights — the polity has the right to what the law says that it has, and the law is infinitely flexible, since it is essentially unmoored. This vision, however, was not that on which the country was founded and on which it has prospered. To the Founders, the rights enshrined in the Constitution and the Bill of Rights were eternal — in fact, were discovered rather than granted, since they were beyond the power of men to grant. Hopefully, we are not yet past the point where we will hold onto the timeless liberties of our Founding in preference to the fleeting “rights” to our neighbors’ property and services that our would-be masters in Washington would grant us, for which they ask in return only that they be the arbiters of our rights and liberties.
I distinguish these for my students as:
Natural:
Human rights or freedoms, truly inalienable that require nothing of another in order to be exercised, but you bear all the responsibility. Example: Privacy
Positive:
Civil rights or liberties, that are bestowed upon by a government that again require nothing from others except for their mutual defense. Example: Jury trial
Entitlements, bestowed upon by a government that requires the imposition of a duty on others for which the recipient bears little or no responsibility. Example: Medicaid
Half of the American population stealing, looting and pillaging the other half of the American population is unnatural and negative.
I hope the one half stealing, looting, pillaging the other half will quit using the government as a cheap excuse to plunder to a once-great Nation banana-republic, third world poverty.
One last point; ridiculously obscene indoctrination (formerly known as education) system aside it is unnatural that the 18-29 yr old age group for the first time in America’s history VOTED THEMSELVES INTO SLAVERY.
Putting aside the fact that in none of the Western Monotheistic religions are all men created equal or endowed with anything, what is the definition of an inalienable right? What is a right that is incapable of being alienated, surrendered, or transferred? It is of course a responsibility. I believe we would have been better served if the founding fathers had spoken English and said, “We believe that our God created all men equal and made them individually responsible for (among other things) their lives, their liberties and their pursuit of happiness.
A fascinating exposition on rights. I would argue that the founders of our Constitution based their concept of rights on more than natural law. I would go further and say that they saw healing as less a right than a Christian duty.
Early on in the bible, we have Cain’s question: “Am I my brother’s keeper?”
This is answered indirectly with the most profound curse.
In the gospels, there are many injunctions to provide healing and charity.
1 Cor 13.13:
And now abideth faith, hope, charity, these three; but the greatest of these is charity.
Luke 9.1-2
Then he called his twelve disciples together, and gave them power and authority over all devils, and to cure diseases.
And he sent them to preach the kingdom of God, and to heal the sick.
Since the left has mostly abandoned their Christian roots, they must cast about for arguments to support charity, but in my opinion, they come up short.
While I agree with your logic on rights, this comes to mind: “There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy.”
I am a student of mathematics, not of philosophy, so I appreciate this condensed treatment on the nature of rights, perhaps because mathematics values brevity and aims to eliminate whatever confusion can be disposed of.
From the standpoint of mathematics, politics are essentially impossible to understand, because political discourse often seems to hinge on a great many axioms, and very few theorems, which is definitely unsettling for an adept of logic, because consistency is often missing.
The unique aspect of American law is this very simple notion that the fundamental rights exist beyond the perimeter of human manufacture, and can be discovered instead of created. In this most innovative construct, the enumeration of rights produces a short list, which is quite wonderful, at least from my standpoint, because this reduces the number of axioms, metaphorically, to the very minimum, so clarity becomes possible if we go back to the foundations. I got a copy of the constitution (and the declaration of independence) for five bucks (from the CATO institute). This booklet is not any larger than your passport.
In this sense, the declaration of independence and the US constitution are the reference documents we can use to overcome the present state of confusion. Yes, America is exceptional. The European union attempted to write a constitution, just a few years ago, and it was as big as a telephone book, hopelessly useless as a source of clarity.
Recently, Justice Clarence Thomas said: “Read the US constitution, is is a lot easier to understand than your cellular phone contract, and a whole lot more useful”. Bravo!
@Professor Guvinoff:
At the risk of yet again flogging a book that I’ve referred to in my last two posts, F. A. Hayek wrote a magnificent treatise on the conflation of the physical and social sciences, and why it’s a fallacy, called The Counter-Revolution of Science. I did my humble best to summarize a portion of his argument in my “Scientism” piece, but there’s a lot more in there than I touched upon. You might find the book to be an interesting read . . . Thanks for the kind words!
@ Loneloc:
I agree. The study of physical science does not open a window on human affairs.
Loneloc,
You have done a commendable job of weaving a brief but clear historical perspective on the two differing sources of rights, and of putting them into context for consideration in the healthcare debate. I really like your writing, and I admire your consistent drawing on the great thinkers and writers to put meat in your pieces. I really do appreciate that you love the words, the thinking, the debate.
Having said that, however, I have to wonder if it isn’t a bit like preaching to the choir. You, Doctor Zero, and many other good conservative posters who continue to use logical argument as a tool of persuasion, may be missing the real point. Those seemingly educated and intelligent proponents of nationalized healthcare don’t give a wit about your rights or your health, because it’s all about power for them. It’s all about control of the economy that goes with it. Gaining control of the health industry is the whole magilla for these people. They’ve been trying to get this for nearly our entire national history, and they know that they are soooooo close, but slip slidin’ away!
This is a fight that can only be won or lost at the polls or in the streets. Even then, it is a fight that will seemingly never end. The old adage that the price of freedom is eternal vigilance must be held close to our hearts, because there are no rights except for those that will be defended.
Still, I do like your writing…..
Just this; You may or may not have the right of healthcare, but I certainly have the right not to pay for your healthcare with my money.
@Tom:
I wonder about the echo chamber sometimes, too. However, I do know that I’ve had at least a couple of readers from the Left that have taken the time to engage my arguments, so at the very least reasoned discussion has taken place, which is all that one can ask for. Furthermore, there’s value even in preaching to the choir. The Left gets a lot of mileage out of inventing “rights.” If one conservative can force someone from the Left to try to justify elevating health care to a right by citing something in this piece, then my work is done. There are any number of polemicists on the Right that do the job far better than could I — although his talents range far beyond polemic, when the good Doctor gets a fire under him, there are few better at it — so I simply try to provide some different perspectives.
Thank you so much for your kind words about my writing. I suppose that as long as there’s a market for it, it kind of justifies itself — that’s a conservative principle, n’est-ce pas?
Speaking as one outside of the choir (I have difficulty carrying a tune, I guess), both I and Rousseau would argue that Natural Law would be completely antithetical to freedom for all. Once society is formed, inside of Natural Law, value is created, whether it be strength, intelligence, beauty, money, etc. Once value is assigned, inequity is created. It is Positive Law that helps to balance this inequity, thereby creating our definition of liberty.
@DOne:
I have to respectfully disagree re your reading of Rousseau. In The Social Contract, he declares, “Man was born free, and everywhere he is in chains.” He spends the entirety of the Discourse on the Origin of Inequality arguing that every form of servitude is a direct result of society. His belle sauvage was a solitary, natural being that was possessed only of the desire for self-preservation and pity for his fellow man. Indeed, in Natural Right and History, Strauss devotes a good deal of time to Rousseau; he holds that according to Rousseau, the state of nature is the only place where men ever were truly free, since freedom is a pre-rational condition and it is not possible for men to return to a pre-natural state (as much as they sometimes seem to try . . .). Strauss argues that Rousseau marks a partial return to classical natural right in that “rights” become a duty to support a greater good, in his case the General Will.
Indeed, I would say that your view would be most closely related to that of Hobbes. To Hobbes, the state of nature is the “war of all against all,” and the only natural right is that to self-preservation. Even in Rousseau, the General Will would preserve some semblances of the freedom found in nature. In Hobbes’s model, on the other hand, positive law would be the only guarantor of any rights beyond that of self-preservation. However, my central point stands, since the Founders explicitly embraced Locke’s concept of natural right at the expense of Hobbes (and, with the possible exception of Jefferson, of Rousseau, for that matter).
I do appreciate the riposte, and would be open to evidence to the contrary.
Sorry — my brain must have been going in and out. What I meant to say in the pivotal sentence about Strauss and Rousseau was, “he holds that according to Rousseau, the state of nature is the only place where men ever could be truly free, since freedom is a pre-rational condition and it is not possible for men to return to a pre-rational state.”
[...] Doc Zero attributes the modern idea of natural law to Hobbes. This is backwads. Hobbes originated the modern idea of facism. It was John Locke that originated the modern idea of natural rights deriving from natural law. [...]
@ Loneloc:
You don’t understand my assertion; man was truly free in a natural state. However, man cannot exist in an independent, natural state. Value is created when society is created … thereby restricting and limiting man’s complete freedom. I would argue that the “shackles” discussed in the Discourse can only be cast off by rejection of that imposition and rising up against the oppression of value. Regardless, it is still society that rejects inequality and said value, through imposition of modified Positive law.
A combination of wit and study to be sure, this article has. Rights, in the natural sense, can be easily discerned by a simple experiment (which I have performed, by the way). Reduce yourself to the pre-rational (not entirely possible, as any relatively healthy and intelligent human is self-aware and capable of forethought) condition. Spend ten days in the wilderness, relying on whatever skills you may have to survive; self-protection, foraging, sheltering, hygiene, the basics alone being your focus. What rights you have end at the tip of your nose. Feel free to argue this with any fauna or flora willing to listen.
Now add a dose of companionship. Not to knock a good rocket scientist if you need one, but it doesn’t take one to figure out that there is mutual benefit to cooperation, coordination, and communication in order to not only survive, but to thrive. What rights are shared, which are reserved? And this is only a party of two.
The Founding Fathers were pretty much spot on. The human being and human spirit are far more capable of discerning a proper exercise of rights in our immediate settings than can ever be legislated or mandated. Discussing this at the macro-society level changes nothing about charity, goodwill, and grace.
@DOne:
I think that we’re in sync regarding Rousseau’s beliefs concerning the effect of society upon man. The statement that I took issue with was that “both I and Rousseau would argue that Natural Law would be completely antithetical to freedom for all.” On the contrary — natural law is freedom for all. Rousseau’s entire point is that society is unnatural. Rousseau would argue, I think, that positive law is responsible for the affliction of men, and that the vestiges of the state of nature that remain as part of the General Will is what drives men toward liberty. A properly-constituted state will incorporate natural right into positive law, but when the General Will conflicts with positive law, Rousseau would say that the law has to go. As I said before, referring to Strauss, Rousseau’s concept of liberty was partially classical in nature; men are free to do whatever is necessary to fulfill their obligation to express the General Will. In this sense, if the State expresses the General Will, Rousseau’s state would be more totalitarian than would that of Hobbes; however, it would be a benevolent totalitarianism akin to Tocqueville’s “soft despotism,” and the citizens would perceive themselves to be free, with the exception of the malcontents. However, in Strauss’s construction, this form of natural right is more modern than classical because it is not teleological.
Again, I think that where interpretation of Rousseau is concerned, we agree more than we disagree (though I suspect that where opinion of Rousseau is concerned, we’re in substantial disagreement). For the most part, I even agree with you that Rousseau probably felt that society was inevitable, although I don’t think that he believed that it was literally impossible for man to remain in the state of nature; he just thought that man’s drive toward pity and compassion would inevitably drive them toward one another. However, to say that natural law implied freedom for some but not others is to fundamentally misunderstand his concept of the state of nature, I believe.
[...] cure for blithering idiocy: freedom and individual liberty (yeah, I know–ooh, ick, philosophy!): Natural Right — What is a "right?" It is a vitally important, fundamental question. Most people get it wrong. [...]
DocZero – I really enjoy your posts at Hotair. I have posted these thoughts there before.
Everytime an abortion is performed, a life is lost.
Everytime a gun is purchased, a life is NOT lost. Hundreds of millions of guns are in the US and only a miniscule number have ever been pointed at a human, much less taken a human life.
The Supreme Court has ruled that an Abortion is a Right, even though the language is not in the Bill of Rights, other amendments or even legislation. Futher, they have said that it is required to be available with very few restrictions in all 50 (57) States.
The right to have a Gun IS the second Amendment in the Bill of Rights and yet we have severe limitations on it possesion.
Imagine if we linked Gun rights to Abortion rights.
I would be for a 3 day (or even 9 month) waiting period for getting a Gun/Abortion.
I would be for a requirement to have a multi-day class to get a permit for a Gun/Abortion.
I would be for a requirement that you must be 21 to purchase a Gun/Abortion.
But I bet those for Abortion would not be.
While I agree with and appreciate the excellent description you give here on natural vs. positive (I always called them ‘legal’) rights, the problem as I see it is that our founders deemed it necessary to include some positive rights in our Constitution (right to a trial, a jury, and to legal counsel), so liberals will always and forever be pointing to those as a justification for adding more.
The proper understanding of rights is precious and a rare thing, but it is just the tip of the iceberg in countering the onslaught of people claiming a “right to healthcare”. We have to come up with better and more arguments. This is a good starting point, but would love to see you expound on the issue.