In “Sen v. Bauer: On What Do Rights Stand?” (FI, June/July 2010), I examined the basis of so-called natural rights under various forms of political economy. Reader Stephen E. Silver responded with a letter in which he commented, in part:
. . . Human rights do not stand on anything. These rights, when first promulgated several hundred years ago, were called “natural rights” or the “Rights of Man.” They were believed to be God-given; if there was no God, then there was no basis for these rights. . . . Perhaps we should treat others as if they had human rights, and we should ourselves be treated as if we had human rights, but these rights do not really exist. . . . We have put them to good use, but we should admit that they are simply a figment of society’s imagination. Indeed, they may represent our best aspirations.
This letter raises interesting issues and merits a response. Let me start with Silver‘s first point, namely, that human rights used to be dubbed “natural rights” and were as such thought to be God-given. As the term natural clearly suggests, these rights were also believed—for example, by John Locke—to be based on an understanding of human nature. Human beings may have been regarded by some natural-rights theorists as created by God, but their basic rights were nonetheless held to be derivable from their nature as free and independent moral agents. That is how Locke saw it, right or wrong. So what matters here is whether human beings are a class of living entities in the world and whether they have attributes that imply that they have certain rights once they find themselves in human communities. Locke and the American Founders held that they do. God had nothing much to do with this part of the theory.
Next, the reason for the switch from the terminology of natural rights to the terminology of human rights was not due to theological considerations but rather due to the very idea of “the nature of X” falling into disrepute at the hands of skeptics like David Hume, who disputed that things had a firm, stable nature. This is still a very open issue in philosophy, so it is still widely argued that human nature exists and that certain rights may be derived from it. (Though the idea is widely disputed, it could well be right, which is what really matters.)
As to whether there are—or have been—many different conceptions of human nature across the globe and throughout history, that’s irrelevant. There are many different conceptions of justice, fairness, equality, virtue, vice, and the like, but that simply reflects the fact that people don’t see eye to eye. It does not imply for a moment that no human nature can be identified, only that people argue about the matter as they do about most other serious human concerns. In my view, which is by no means idiosyncratic, human nature exists. It consists of those aspects of what human beings share, by virtue of which we are classified as human beings rather than, say, bears or zebras (which also have a nature).
Silver also questions the existence of natural rights on the grounds that “these so-called inalienable rights may be abrogated or withdrawn.” The fact that a principle can be violated doesn’t disprove its existence. Consider that women have the right to sexual liberty, yet rapists violate this principle all too often. Moral and political principles are of that sort.
Another point on which I believe Silver is mistaken is the defining capacity of human beings to reason. We are rational animals, as most thinkers have found since ancient times. This means we have the capacity to be rational, to reason carefully about the world. It does not mean that we do so all the time or that all of us choose to do so.
The idea of natural rights is pretty well grounded—I wrote about it in my Individuals and Their Rights (1989)—and the existence of disagreement does not undermine it. Thousands of racists disagree about the moral equality of blacks and whites without affecting the truth about that issue in any way.
As a side issue, Silver’s case against natural rights is exactly the same as that presented by the philosopher Kai Nielsen in his 1965 paper “Skepticism and Human Rights” in The Monist. The debate goes on, but that doesn’t mean there is no truth about the matter to be sought. Today, it is the president’s favorite attorney, Cass Sunstein, who voices skepticism about natural rights. Tomorrow it will be someone else. That’s why, for those of us who see something essential in the idea of natural rights, eternal vigilance is needed.