Frank van Dun        Ph.D., Dr.Jur.     -    Senior lecturer Philosophy of Law.

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The Law


Natural Law

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Frank van Dun
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Natural law 

The concept of natural rights 
The natural rights of persons 
Natural law and property 
Rights and claims 
Respecting natural rights


The concept of natural rights

Etymologically speaking, the word 'right' means that which is ruled, governed or controlled (from the Latin regere, to rule, to control) by a person. Thus, my rights are the things that I control. My natural rights are those things that by nature are under my control: my own body, various parts of which I can control directly and which naturally or organically are connected to other parts and organs of it.  

We can also say that a right is a person's power or faculty and that a natural right is a person's  natural power or faculty. However, that is a possibly misleading way of expressing things. Strictly speaking, a right is a means of power, which, by being under one's control, gives one a faculty of doing things one otherwise would lack.  

Usually, the word 'right' connotes respectability: it is a person's respectable means of power. Thus, it is said that one ought to respect the rights of others. However, in the strict sense of the word, a right may be respectable or it may not be. For example, few people believe that the rights of the stronger or legal rights are per se respectable, yet few people doubt that they are rights.  

'Right', then, is in the same category as 'law', which simply means an order of things (for example, an order of persons) but also connotes respectability. As with natural law, it is necessary to distinguish clearly between attempts to identify the natural rights of persons and attempts to prove (or disprove) that such rights are respectable. 

Obviously, 'natural law' and 'natural rights' are intimately related concepts. Because natural persons are basic elements of natural law (in the juristically relevant sense), so are their natural rights. Consequently,  we can describe the natural law as the order of natural persons and also as the order of natural rights of such persons. The natural rights of persons are respectable if the natural law is respectable. Conversely, the natural law is respectable if the natural rights of natural persons are respectable. 

Nowadays we are more likely to speak of 'rights to do' certain things than of some material things being rights. That is not a fundamental difference. A 'right to do' is a 'lawful use of one's rights'. A person can use his rights in different ways. Some of these ways may be lawful (because they respect the natural law and the rights of others) while other ways of using his rights may not be lawful. Clearly, it would be inconsistent, from the perspective of the student of natural law, to hold that lawful and unlawful uses of one's natural rights are equally respectable. Thus, that you ought to respect my natural rights (my body) does not imply that you ought to let me use my body to destroy yours or even to trample on your vegetable garden.

It is advisable, then, to keep in mind that while some things simply are my natural rights, it does not follow that I simply have the natural right to do something or other. 

There is an easier and more elegant formulation of this fact. Leave the etymology of 'rights' aside and substitute the word 'property' whenever you mean 'that which is controlled by a person'. Likewise, substitute 'natural property' whenever you mean 'that which is by nature under the control of a person'. Then a person's right to do something is simply his lawful use of his property. His natural right to do something is simply his lawful use of his natural property, or else, in a wider sense, his use of his property in a manner that is consistent with natural law.

The natural rights of persons

Oneís natural rights are oneís

* life (in the biological sense);
* freedom (oneís life in the sense of oneís activity as a separate thinking, speaking, acting and working person);
* natural property (oneís body, which is the physical seat of oneís life and freedom).

These things obviously and naturally ('by nature') are either directly under one's control or else naturally or organically connected to things that are under one's direct control. They are really only aspects of oneself. In that sense, a person is his own natural right. To put this somewhat differently, a person's powers of self-control or self-determination (being literally embodied in his physical living body) are his natural rights.

It is possible, of course, to extend one's control or power over other persons. However, the world and human nature being what they are, such control is categorically different from self-control. The latter is exercised immediately, with no need to do something else first. It requires no threats, promises, machinations, manipulations or coercive interventions. 

For example, to make my arm rise, I simply raise it. I cannot make another person's arm rise by simply raising it. To make another person's arm rise, I first must do some other more or less complicated things. I can grab his arm and force it upwards; I can apply a sensory stimulus to him so that he is likely to raise his arm in a spontaneous reflex; or I can find or put the person in a particular situation and then confront him with a number of alternatives (involving the prospects of benefits or harms), so that he is likely to judge that raising his arm is the best option for him.

Natural law and property

Assuming the natural rights are respectable, then all other rights are respectable if and only if they are established in a manner that does not violate anyoneís already established respectable rights (be they natural or established). This is the case specifically for a personís works, that is, those things that he produced by his own actions. As John Locke conveniently summed it up: his life, his freedom, and his property (his body and his works) are a personís rights under the law of nature, which reason declares to be respectable.

Note that, strictly speaking, apart from one's natural property (one's body), other property (e.g. one's house, car, cattle) is not a natural right. That is because one is not by nature in control of such things. However, control over such things can be achieved in different ways:

* without violation of anybody's respectable rights; or
* by violating or otherwise interfering with another's respectable rights.

In the former case ('no violation of any person's respectable rights'), control is established lawfully -- justly,  without injustice to anyone, in ways that respect the natural law. In the other case ('violation of or interference with another's respectable rights), the rights are established unlawfully, in a way that is not consistent with the natural law.   

Lawfully acquired property is not a natural right in the strict sense, but we can refer to such property as a right within the natural law. In that extended sense, lawfully acquired property is a natural right too.

It follows that justice requires that we respect not only other persons and their natural rights but also their lawfully acquired property. It does not require that we respect a person's unlawfully required property (or rights).

Rights and claims

Nowadays, rights often are confused with claims, which often are called 'rights-to'. Thus, many people define 'rights' as 'claims' or 'justifiable claims'. That is misleading. To say that  rights are rights-to is to suggest that a house is mine by right merely because I have 'a justifiable claim to it' -- as if the precise nature of what justifies my claim were irrelevant.

However, the fact that I can produce some justification for claiming X does not prove that I have a right to X. It does not prove that X is my right. Suppose, for example, that I justify my claim to X by noting that I need or fervently desire to have X, or that I would have had X if the world or society had been 'better' than it is. In some circumstances, such justifications may be appropriate and convincing. For example, if you want to give part of your property to the needy then you probably would require that people who appeal to your charity somehow prove their need. If you want to give away something then you probably would want to make sure that the beneficiary values it more than any other potential recipient of your benevolence. Clearly, however, it would be highly misleading to say that such persons have a right to your property. 

Properly speaking, a 'right to X' is not itself a right but a lawful claim to X. Consequently, a claim to X logically can qualify as a right-to X only if X is one's right. I have a right to my house because the house is my right, because it is mine within the law.

In the present confusion, that relation is turned on its head. Instead of saying that a I have a right to what lawfully is mine, it seems we should say that society should recognise my 'justifiable claim' to something by giving me legal power over it, regardless of whether it lawfully belongs to one or more other persons.

The false identification of 'rights' and 'rights-to' has led to the so-called 'rights explosion' of the second half of the twentieth century. That explosion followed in the wake of the adoption of the Universal Declaration of Human Rights by the United Nations in 1948. The Universal Declaration lists an enormous number of things which human beings supposedly have a 'right-to'. It does not matter whether those things exist or not, whether the people who supposedly have a right-to them have produced them or even have the intention of producing them for themselves. The Declaration merely presupposes that they are things people justifiably may want or desire -- in other words that they are 'good things'.

Clearly, however, there is no end to the things people may want or desire merely because it is somehow better to have them than to lack them. Hence, there is no limit to the things people may have a right-to. Of course, with natural rights and the things to which we have right because of our natural rights, no such multiplication of rights is possible.

Respecting natural rights

That one ought to respect natural rights (and the natural law) implies that one ought to do so even when that is not profitable or when it is frustrating in view of the satisfaction of one's own desires.

As a person, one is capable of understanding and making the distinction between what one ought to do out of respect for oneself or others and what one should do to achieve the highest level of satisfaction of desires. A moral person not only is capable of understanding and making that distinction but also is willing to control the ways of satisfying his desires by checking their compatibility with what he ought to do. Often, 'enlightened self-interest' is a sufficient motive to induce a person to respect the rights of others, but there also are many occasions when it is not. 'Enlightened self-interest' tells you what you can expect to get away with, and that may involve murder, theft, robbery and fraud.

All attempts to reduce 'ought' to some scheme of self-centered utility-maximisation, no matter how 'enlightened', must fail. It may well be true that overall it would be 'better' (in terms of the want-satisfactions of oneself and others) that everybody respects the natural rights of others consistently than that some persons on some occasions neglect to do so. However, that would be to no avail unless it were true that for no person there is any occasion on which it would be 'better' for him to play fast and loose with the natural rights of others.

Unfortunately, the actual world is not constituted in that way. It provides ample opportunities for self-interested utility-maximisers to increase their own 'utility' in unlawful ways with little or no risk of being held to account and to assume liability for their acts. 'Enlightened self-interest' simply means that a person is better equipped to discover and exploit such opportunities. Throughout the ages, and perhaps never as clearly as today, enlightened elites have been successful in getting away for long periods with severe violations of natural rights. They have been, and are, adept, at exploiting the fact that people are likely to be frustrated when others stand in the way of their want-satisfaction -- especially when those others are not capable of offering adequate resistance to such predations. 

Of course, that one successfully can get away with violating the natural rights of others does not prove that one ought not to respect such rights. Nor does the fact that some people prefer to assume that 'ought' has no meaning except as a shorthand for 'seeks to maximise utility' prove that it does not mean what any person with no utilitarian axe to grind knows it means. If there were a world in which no one ever had to fear any frustration from the actions of separate other persons acting independently then there would be no need to distinguish between the concepts of what one ought to do and what maximises one's utilty. To repeat, ours is not such a world.