Loneloc: Natural Right
by doctor zero
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.
by doctor zero
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...
Thomas Jefferson, The Declaration of Independence
Health care isn’t a privilege, it’s a right.
Various
Bienvenue.Thomas Jefferson, The Declaration of Independence
Health care isn’t a privilege, it’s a right.
Various
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.