Natural Rights; R. Cooney

oturo ightf RONALD COONEY THE CONCEPT of natural rights no doubt has its origin in the Roman Stoic idea of a "law above the law," of an unwritten law which precedes and is superior to man made law. Christian philosophy, in the persons of St. Augustine and St. Thomas Aquinas, developed and refined the natural law idea, and it was a significant tenet of the eighteenth century Enlighten ment. The doctrine has come down through the centuries as one of the major' arguments against arbi trary and unrestrained govern mental power. In much the same way is the be lief in the natural rights of man a belief in "rights above rights." Likewise, natural rights have been used in the resistance to unj ust authority. Natural rights were partial justification for the GloriMr. Cooney is a freelance writer .-ecently grad uated from the University of Nevada. 628 ous Revolution of 1688, for the American Revolution (the Declara tion of Independence cited man's "unalienable rights"), and for the French Revolution and the Dec laration of the Rights of Man. All of the revolutions since the eight eenth century have drawn at least some of their power from appeals to natural rights.

The connection between natural rights and natural law is instantly recognizable. Both exist prior to the State, and both transcend it. Natural law, like the law of the State, provides protection for the individual's rights from violation by another individual, or - and th.is the State does not do --" by the State. itself. Natural rights and natural law are the final arbiters of liberty. Finally, natural rights and natural law are both denied by those who exalt the State over the individual citizen. those who 1972 NATURAL RIGHTS 629 make the State all and the in dividual nothing. It is to this, as it is to all forms of Statism, that natural rights make a direct and implacable challenge. A Dictatorial Delusion The common delusion of the de fenders of unlimited governmental dominion is that the State confers upon the individual whatever po litical and economic rights he may enjoy. This was certainly the view of Thomas Hobbes, the defender of absolute monarchy and the author of the Leviathan. Hobbes, in 1651, argued for the complete sovereignty of the king as ruler and lawmaker. Hobbes sought to repudiate natural law by placing it on equal terms with the civil law. He states in the Levia,thwn, "The law of nature and the civil law contain each other, and are of equal extent." In other words, natural law (and by extension, natural rights) is as high as, but no higher than, civil law. The sovereign makes civil law, and in Hobbes' kingdom there can be no law higher than the decrees of the sovereign. He, in effect, is the law.

Whatever the political repercus sions of a system like that which Hobbes postulates, there arecer tain moral and ethical questions which it poses. Hobbes' felt that morals and ethics had no place in determining whether or not a systern of government was good or evil. Such a judgment, according to Hobbes, could not be made, or if made, could not be proved. The correlation between Hobbes disa vowal of natural law jnatural rights and objective morality is palpable and direct. Hobbes real ized that the acceptance of un alienable rights of life, liberty, and property would compel one to make a moral judgment of a politi cal system which violated those rights. Having given the sovereign absolute authority to make laws, Hobbes goes on to say that no ethical determination can be made about the sovereign's action, about its goodness or evilness. Ethics, to Hobbes, are purely subjective and inapplicable in political affairs.

The sovereign, it would seem, is above both law and morality; or, like Nietzsche's superman, "be yond good and evil." Hobbes wrote in defense of au thori tarian rule by one man, the monarch. Monarchy was, in Hobbes' day, the most widespread form of government. With the gradual decay of the monarchical form, and the general democrati zation of governments, came the belief that it was not the leader of the nation who was sovereign, but the people themselves. The divine right of kings had become, as Herbert Spencer observed, the "divine right of majorities." But 630 THE FREEMAN October vvhether they represented the in terests of monarchy or democracy, the enemies of natural rights had the same intention - to deny the individual any rights but those granted by the State. Bentham's Faith in Democracy Of the type of thinker who spoke for democracy and against natural rights was the great utilitarian, Jeremy Bentham. No statist in economic concerns, Bentham was curiously inconsistent when it came to limiting, or not limiting, the State's sphere of influence.

Government's function, as Ben tham saw it, was "creating rights." He considered natural law and natural rights "fictions," and in his first work, the Fragment on Government, he castigated Black stone for a contrary belief. Ben tham's antipathy to natural rights sprang from the conviction that natural rights were obstacles to re form, and he was against checks and balances and a system of sep aration of powers for the same reason. Bentham thought, with the faith of the statist in the ability of gov ernment to solve all human prob lems, that by making the act of legislating as easy as possible, the State could deal more readily with society's dilemmas. Bentham did not see what others, most notably the Framers of the Constitution, savv so penetratingly: that the power of the State to achieve good was equaled by its power to achieve enormous harm, that in seeking the former one necessar· ily braved the latter. Bentham did not perceive the difficulty inheren1 in placing all right-giving poweI in the State's hands. He failed tc understand that the capacity fOl bestowing rights could become thE capacity for withdrawing rights Finally, Bentham, like Hobbes be· fore him, was incorrect in assum· ing that the State could creatE rights out of nothing. The State if a delegated authority, and wha1 power it has derives from the in dividuals who comprise it. Sue} being the case, it is absurd to as sume that the State can bestov rights. on its own creators. Th4 State may give order to rights define them more clearly, and pro teet them with laws; but it can n4 more grant rights to the member: of society than a child can gran rights to his parents.

The Ethical Case The ethical arguments in favo' of natural rights are perhaps eve] more telling. If it is true that mel have only the rights the State ha seen fit to give them, what is t, stop the State, at any time and fo any reason, from taking bac: those rights? Furthermore, hO'~ can we say that the State act 1972 NATURAL RIGHTS 631 wrongly if it chooses to take that action? By the logic of the oppo nents of natural rights, the Nazi regime had a perfect justification for recalling the rights, including the right to life of 6,000,000 hu man beings, and should not be con demned or thought of as evil for simply exercising the prerogative to which, as a state, it was clearly entitled. Thus, the denial of nat ural rights quickly resolves itself into a rejection of the ethical dif ferences between governments, making a slave-state the moral equal of a republic. We now arrive at the final ques tion, "What are the natural rights?" Although it cannot be answered precisely, that does not mean it is unanswerable. As has been said before, natural rights precede the State and hence are a prio'f'li in character. Natural rights are every man's at birth and are not State-granted. If each man has an equal claim to liberty, that is, the use of his rights, he can be limited in his freedom only by the claims of other men to an equal share of liberty. The circle of rights around every man ex tends as far as it may without in truding on the rights of other men. For this reason are the "rights" granted by the State bo gus rights. A right to receive wel fare, for example, is invalid since it requires the abridgment, how ever partial, of the rights of the citizen who is compelled to pay for the welfare benefits given to some one else. Natural rights, by con trast, require no abridgment of another individual's rights to ex ist, but are limited only by the same natural rights of another person. I) IDEAS ON 'LIBERTY Nature' s Way IN MAKING his ethical choices, man is guided by a code believed to have the sanction of God; and experience has shown that the good life to which his instinct impels him can be achieved only if he makes his decisions accordingly. The Ten Commandments have been called the Word of God; they can also be described as natural law, and natural law has been described as nature's way of apply ing means to ends.

FRANK CHODOROV, "Free Will and the Market Place"