Natural rights: A reappraisal

Abstract

Are there any natural rights, and if there are, what is their foundation? This is a question that has received many answers over the years, almost to the exhaustion of all the possibilities, so that the very question raises doubts as to its meaningfulness. This paper puts forward no comprehensive answer to the question, but it does venture one more approach to an answer. First, a brief examination is offered of some theories of rights in order to fix the background of the particular question that I wish to consider here: are there rights that cannot be denied? The most extreme critic of any doctrine of natural rights, Jeremy Bentham, gave short shrift to this question with his well-known assertion: "Natural rights is simple nonsense; natural and imprescriptible rights, rhetorical nonsense - nonsense upon stilts."1 Bentham's chief objection to the idea of a law of natureseems to have lain in his belief that in suggesting and developing such an idea people did no more than state their feelings and then claim that these feelings were grounded in some objective reality. If there were truly nothing more than this to claims about natural law and rights we could not but agree with Bentham that to appeal to natural law in matters of morality is covertly to appeal to one's own moral prejudices. Our agreement would not require us to believe that there were no rights at all in a society, but it would mean that what rights there were were the creation of law, the creation of individual men with power and authority, "the results of some manifestation or other of the legislator's will. ''2 If there are other senses to the word 'right' besides that of a legal right, then they are parasitic upon it, and come about in an analogous way. If legal rights are created by a legislator's will, other rights might be established, for example, through social pressures exercised by the members of a society, or more generally, by prevalent social customs. The point is that there is no independent, absolute existence to rights. If the legislator bestows rights on the citizens of a state, he can also take them away from those who possess them; if social customs change, the tacit rights which they create change with them; no rights are inalienable. Law and rights are