Many distinguished, even brilliant thinkers, both past and present, have championed the doctrine of “natural rights” (more commonly referred to nowadays as “human rights).” Without doubt, largely thanks to its enshrinement in America’s Declaration of Independence, it remains our public political philosophy.
According to the creed, all human beings, simply by virtue of their humanity, possess the very same “rights.” While these “rights” have been variously described, traditionally they have been held to consist of claims to such basic goods as life, liberty, property, and maybe “the pursuit of happiness.”
Since these “rights” are “natural” or “human,” they transcend all individuating circumstances. “Rights” owe nothing to culture, say, or history—an idea at one time conveyed through the fictive concept of “the state of nature.” The latter refers to life prior to the formation of political society.
Although rights theorists disagreed with one another over what life was supposedly like in it, they all agreed that it was for the sake of relieving themselves of the unqualified character of human conduct in the state of nature that individuals leave it and join together to form a state.
That is, according to the classical rights theorists, the state comes into being as a means of qualifying conduct. Two of the most salient characteristics of a state are, first, an office in which all authority is thought to reside and, secondly, a mechanism of power attached to this authority.
A common authority—one to which all members of the state are bound—is responsible for both establishing the terms in which the conduct of citizens is to be qualified as well as enforcing these terms. It is for the sake of fulfilling these functions that individuals give rise to government.
This is crucial, for even by the lights of the great rights theorists their own theories cannot be sustained. There is no incompatibility between the idea of “natural rights” and the idea of life beyond the state of nature. However, there is indeed radical incompatibility between the idea that the state exists for the sake of protecting “natural rights” and the nature of political life.
To put it more simply, natural rights are unqualified in character. Yet it is precisely for the purpose of qualifying this unqualified situation—the state of nature—that the state was brought into being. Life under government is the antithesis of life in a state of nature, in other words, because in the former, citizens’ conduct is conditioned by laws. In the latter, without a common authority (or, what amounts to the same thing, a commonly recognized authority), there is no law.
The laws under which we live in political society are duties, first and foremost. Rights can be read from them, for sure, but it is important to grasp that every individual’s right to such-and-such is simply the duty of each and every other person not to interfere with their exercise of it. And even then, these “rights” are not “natural” or “human.” Rather, they are culturally-specific acquisitions that derive their meaning from the complex of duties within which they are found. (This explains why neither in the Constitution, the common law, nor legislative law is there to be discerned any references to the abstraction of “natural rights.”)
There may very well be “natural rights.” Yet talk of them, while rhetorically effective, is philosophically problematic and politically useless.