Natural Rights

A Criticism of Some Political and Ethical Conceptions

David G Ritchie

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317852612
• Edition: 1
• Topic: Philosophy
• Subtopic: Philosophy History & Theory

First published in 2002. This is Volume XI of twelve in the Library of Philosophy series on Ethics. This study is the author's criticism of some political and ethical conceptions outlined on Natural Rights and was written in 1894.

PART I

THE THEORY OF NATURAL RIGHTS

CHAPTER I

THE PRINCIPLES OF ’89

“THE principles of 1789” were embodied in the Declaration of the Rights of Man, which was prefixed to the Constitution promulgated in 1791. They are often spoken of, by those who admire and by those who reject them, as if they were the distinctive and peculiar creed of the French Revolution. But France deserves neither the credit nor the blame of endeavouring to express for the first time, and for all time, in a few abstract phrases the political and social faith on which her institutions were to be founded and built up. France has suffered more than any nation because of this creed of liberty and equality that she proclaimed in the face of the world; but her critics, among whom may now be found many Frenchmen as well as Englishmen and Germans, are guilty of historical inaccuracy, if, on the evidence of this creed, they contrast the foolish abstractions of the Gallic spirit with the prudent positivism of those whom they are pleased to call “Anglo-Saxons.” If the French may be blamed at all in the matter, there is more ground for alleging that they simply plagiarised “Anglo-Saxon” formulas. Every article in the French revolutionary creed had been already formulated—and often (as will be shown in detail) in less carefully guarded phraseology—by the emancipated “Anglo-Saxons” on the other side of the Atlantic. When Lafayette sent the key of the destroyed Bastille by Thomas Paine to George Washington, he was, in a picturesque symbol, confessing the debt of France to America.¹ It is true that neither the “Articles of Confederation” of 1777, nor the “Constitution of the United States,” as originally proposed (1787) and ratified, contained any “Bill,” or “Declaration of Rights”; it is true, also, that the first ten “Amendments,” which were added in 1789, were regarded by Jefferson as a somewhat inadequate substitute for the Declaration of Rights which he desired.² But it should not be forgotten, first, that the Declaration of Independence (1776) had already named the natural and “unalienable rights,” in virtue of which the American colonists justified their rebellion against the British Government and their existence as a group of leagued but independent States: and second, that the Constitution of the United States—even that of 1787—was regarded as only drawing closer the bonds of alliance between States which were still supposed to retain, in many respects, their sovereign rights. The Constitution of the Union only contains the terms of the federal compact.¹ It declares the rights of the States as against the Federal Government. The appropriate place for the declaration of the rights of the individual citizen is not in the federal constitution, but in the constitutions of the several States.² And in most of the Constitutions which originated after 1776 (some of the States retaining for a considerable period—Rhode Island as late as 1842—their old colonial charters), there is a Declaration, or Bill of Rights, exactly analogous to the French declaration. The “Bill of Rights” of Virginia (June 12th, 1776) may be taken as typical: it has served as the model for many similar declarations, adopted after American independence had been secured. “Other colonies,” says Bancroft, “had framed bills of rights in reference to their relations with Britain: Virginia moved from charters and customs to primal principles; from a narrow altercation about facts to the contemplation of immutable truth. She summoned the eternal laws of man’s being to protest against all tyranny.”³ These words are worth pondering, and also the words of the “Bill of Rights” itself. They may serve as a wholesome warning against the habit of explaining political institutions and political ideas by facile theories of race-difference.

As M. Paul Janet has well said, “If tne French Revolution has lasted longer and been more violent than the English Revolution, it is because it has taken place a century later.”¹ The English parliamentarian was able to appeal, with more or less accuracy, to “historical rights”—not in a forgotten, but in a recent past. The advocate of constitutional government in the France of 1789 could not appeal to any “historical rights” that were known to any one but antiquarians. Apart from the longer postponement of the crisis, the remedy was more difficult to find in France than in England, secured against continental complications by her insular position, or than in America, separated by the ocean from the government she was shaking off, and either receiving the sympathy, or free from the interference of distant European powers. The principles of the French Revolution were phrased in “metaphysical” language. This was not due to a special defect in the French mind, but to the spirit of the eighteenth century. The English revolutionists of 1640 to 1660 spoke in theological language; it was the fashion of their time. The inheritors of English traditions in America talk the same “metaphysical jargon” which the French were to repeat in the next decade. The Virginians declare—

“That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot by any compact deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

“That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

“That government is, or ought to be, instituted for the common benefit, protection and security of the people, nation or community; of all the various modes and forms of government, that is best which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of maladministration; and that when a government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.”

Is there anything more extreme in the French declarations of 1791 and 1793 ? And is there one word of Burke’s eloquent denunciation of “metaphysic rights” which would not be equally applicable to this Virginian declaration of 1776 ? And the Americans should, in his eyes, have had the less excuse for their metaphysics, because they might have continued to appeal, as they already had appealed to the inheritance of English liberties.

We must not suppose that this appeal to natural rights was due solely to the influence of Rousseau, or that save for French “metaphysics” such ideas would never have found a home in the minds of men of English race and English speech. “Men being by nature all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent.” These are the words of the sober Englishman, John Locke;¹ and in his Treatise of Civil Government, the great intellectual vindication of the principles of the Whig revolution of 1688,² will be found every one of the three principles which Burke condemns, and which he doubtless did not find expressly formulated in the Act of the 1st of William and Mary, sess. 2, ch. 2, which is known as the “Declaration of Right.” The principles of the revolution of 1688, according to Dr. Richard Price, were these:—that we have a right (1) “To choose our own governors;” (2) “To cashier them for misconduct;” (3) “To frame a government for ourselves.”³ The doctrines of the American Declaration of Independence resemble far more closely the views of Locke than those of Rousseau. None at least of those theories in respect of which Rousseau differs from Locke are to be found in the American Declaration. And one passage in the American Declaration echoes not merely the ideas, but the very phraseology of Locke’s Treatise.⁴

But the theory of natural rights was not Locke’s invention. Neither he nor Jean Jacques can claim the credit of having “discovered the lost title-deeds of the human race.” The theory of natural rights is simply the logical outgrowth of the Protestant revolt against the authority of tradition, the logical outgrowth of the Protestant appeal to private judgment, i.e. to the reason and conscience of the individual. Speaking generally, we may say that throughout all the struggles of the Middle Ages, it was not “liberty” for which men fought, but “liberties.” Privileges were claimed because of some real or fancied authority in the past. A town, a district, a corporation, or a social class alleged on its own behalf immemorial custom or some definite royal, imperial, or papal grant or charter. The political theories of the Middle Ages were mostly the theories of men living in the cloister, or trained under monastic influences. They implied the acceptance of three great authorities, which might be interpreted or applied, but were not to be questioned—the authority of the Bible, of Aristotle, and of Justinian. Now, as we shall see, each of these authorities contributed something (Aristotle least of all) to that idea of a Law of Nature which, in the eighteenth century, became the basis of the revolutionary creed. But, while the intellect of Europe still lived under the abiding shadow of the Holy Roman Empire and the Holy Roman Church, man did not think of himself except as the member of a particular nation, and, still more even, as the member of a definite social class or caste. The Aristotelian doctrine that “man is by nature a political animal” had acquired the sanctity of a dogma, and kept the mediæval thinker from imagining man’s rights in abstraction from any particular political society. Still, even in the Middle Ages among the unlettered multitudes, with whom Aristotle and Justinian counted for nothing, but the dimly known Hebrew Scriptures for a great deal, we find the first germs of an appeal to something beyond all charters and all customs and usages of which lawyers knew. Wycliffe’s startling thesis that “every one in a state of grace has real lordship over the whole universe,”¹ from which he deduces his ideal of community of property, can hardly be cited as a mediæval example of the natural rights theory, because it is not man as man, but only the saints that are in this fashion to inherit the earth. The man who is in mortal sin cannot hold dominion or lordship at all. Nevertheless, it is easy to see what might become of such interpretations of the Bible when they made their way into the minds of the poor parish priests, or of oppressed peasants, who found in some scriptural phrase a voice for their sufferings and for their claims.

“When Adam dalf and Evè span,

Who was then the gentleman ?”

In these words, which fixed in the popular mind the teachings of the “mad” Wycliffite, John Ball, we have a genuine appeal to the natural equality of mankind. The Bible, which Wycliffe had tried to open to his countrymen, admitted, indeed, of diverse interpretations. Adam’s dominion over the creatures was appealed to by Sir Robert Filmer¹ in the seventeenth century as a ground for the divine right of kings to rule despotically; but an English peasant of the fourteenth century, or of the seventeenth, was likely to find a different lesson in the story of the “grand old gardener and his wife.” If all mankind were the sons of Adam, and if all might become by adoption the sons of God, distinctions of birth, and wealth, and power seemed a mere human invention, a consequence (but why an inevitable consequence ?) of sin and the corruption of human nature. Under the reign of the saints might we not get rid of these inequalities ? The doctrine of the “Levellers” may not be the doctrine of the most learned, nor of the most orthodox, theologians, but it represents the ideal which the exercise of private judgment in the study of the Bible had kindled in the minds of the disinherited and the oppressed.

I have already referred incidentally to the historical or quasi-historical character of the rights claimed by the English parliamentarians in the seventeenth century. The more advanced sections of the anti-royalist party find themselves driven farther and farther back in their claims. “To recover our birthrights and privileges as Englishmen,” “to purchase our inheritances which have been lost,” are alleged by some of Cromwell’s soldiers as the reason why they had taken up arms.² They are not content with Lancastrian precedents: they profess to seek to undo the mischief of “Normanism.” The times before the Norman Conquest are imagined as a golden age when Englishmen had their rights. According to some of the “Levellers,” the law and the constitution alike were part of the Norman yoke,¹ “The greatest mischief of all, and the oppressing bondage of England ever since the Norman yoke,” says Lilburn, “is a law called the common law.… The laws of this nation are unworthy a free people, and deserve from first to last to be considered and seriously debated, and reduced to an agreement with common equity and right reason, which ought to be the form and life of every government. Magna Charta itself, being but a beggarly thing, containing many marks of intolerable bondage, and the laws that have been made since by Parliaments have in very many particulars made our government much more oppressive and intolerable.”²

Thomas Edwards, the “shallow Edwards” of Milton’s sonnet, a Presbyterian and constitutionalist, complains of the “sectaries” in his Gangrœna:—“As they do in matters of religion and conscience fly from the Scriptures, and from supernatural truths revealed there, that a man may not be questioned for going against them, but only for errors against the light of nature and right reason; so they do also in civil government and things of this world, they go from the laws and constitution of kingdoms, and will be governed by rules according to nature and right reason; and though the laws and customs of a kingdom be never so plain and clear against their ways, yet they will not submit, but cry out for natural rights derived from Adam and right reason.”³

Elsewhere the same writer explains what these sectaries meant by natural rights. “All men [according to them] are by nature the sons of Adam, and from him have legitimately derived a natural propriety [i.e. property], right and freedom.… By natural birth all men are equally and alike born to like propriety, liberty, and freedom; and as we are delivered of God by the hand of nature into this world, every one with a natural innate freedom and propriety, even so we are to live, every one equally and alike, to enjoy his birthright and privilege.”⁴

Thus already in the Puritan revolution of the seventeenth century the appeal to historic right was replaced by an appeal to natural rights. The struggle for parliamentary liberties led some men to go behind parliaments and charters, just as the independent study of the Bible led some men to go behind the authority of Bible and to rely on the authority of “the inner light” alone. This is the logical outcome of Protestantism, however unacceptable to the majority of those calling themselves Protestants, however unsatisfactory and dangerous in the eyes of those who were more influenced by the historic spirit and who realised in more or less intelligent fashion the necessity of social cohesion and continuity. When compared with the “Levellers”—those Puritan precursors of Robespierre and St. Just—Cromwell and Ireton show their intellectual affinity with Burke, or even with Dr. Johnson. “We are very apt, all of us, to call that faith which perhaps may be but carnal imagination.”¹ In these words Cromwell pours cold water on the fire of the mystical enthusiasts, who abounded in the parliamentary army. Cromwell objects to the “Agreement of the People” that it contained too great alterations in the government of the country.² Ireton abhors arguments about abstract justice, and scents danger in the appeal to natural rights. “When I do hear men speak of laying aside all engagements to consider only that ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Contents
• Part I — The Theory of Natural Rights
• Part II — Particular Natural Rights
• Appendix
• Index