Some philosophers distinguish two types of rights, natural rights and legal rights. Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal, fundamental and inalienable (they cannot be repealed by human laws, though one can forfeit their enjoyment through one's actions, such as by violating someone else's rights). Natural law is the law of natural rights. Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws). The concept of positive law is related to the concept of legal rights.
Natural law first appeared in ancient Greek philosophy, and was referred to by Roman philosopher Cicero. It was subsequently alluded to by Saint Paul, and then developed in the Middle Ages by Catholic philosophers such as Albert the Great, his pupil Thomas Aquinas, and Jean Gerson in his 1402 work "De Vita Spirituali Animae." During the Age of Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.
The idea of human rights derives from theories of natural rights.Jones, Peter. Rights. Palgrave Macmillan, 1994, pp. 72, 74. Those rejecting a distinction between human rights and natural rights view human rights as the successor that is not dependent on natural law, natural theology, or Christian theological doctrine. Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is an important statement of natural rights, but not legally binding on any member state unless its provisions are adopted into that state's laws.
Natural rights were traditionally viewed as exclusively negative rights,For example, the imperative "not to harm others" is said to be justified by natural law, but the same is not true when it comes to providing protection against harm whereas human rights also comprise positive rights.See James Nickel, Human Rights , 2010. The claim that "..all human rights are negative rights.." is rejected, therefore human rights also comprise positive rights. Even on a natural rights conception of human rights, the two terms may not be synonymous.
Iusnaturalism, particularly, holds that legal norms follow a human universal knowledge. Thus, it views enacted laws that contradict such universal knowledge as unjust and illegitimate, but some jusnaturalists might attribute the source of natural law to a natural order instead of a divine mandate.
The concept of natural rights is not universally accepted, partly due to its religious associations and perceived incoherence. Some philosophers argue that natural rights do not exist and that legal rights are the only rights; for instance, Jeremy Bentham called natural rights "simple nonsense".
History The idea that certain rights are natural or inalienable also has a history dating back at least to the Stoics of late Antiquity, through Catholic law of the early Middle Ages, and descending through the Protestant Reformation and the Age of Enlightenment to today.
The existence of natural rights has been asserted by different individuals on different premises, such as a priori philosophical reasoning or religious principles. For example, Immanuel Kant claimed to derive natural rights through reason alone. The United States Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are ... endowed by their Creator with certain unalienable Rights".
Likewise, different philosophers and statespersons have designed different lists of what they believe to be natural rights; almost all include the right to life and liberty as the two highest priorities. H. L. A. Hart argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. T. H. Green argued that "if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life."Green, T.H. (1883). Lectures on the Principles of Political Obligation, p. 114. John Locke emphasized "life, liberty and property" as primary. However, despite Locke's influential defense of the right of revolution, Thomas Jefferson substituted "pursuit of happiness" in place of "property" in the United States Declaration of Independence.
Ancient A prevailing view in historical scholarship was that there was no conception of "rights" in the ancient world. This view was captured by Alasdair MacIntyre, who wrote, "there is no expression in any ancient or medieval language correctly translated by our expression ‘a right’ until near the close of the Middle Ages: the concept lacks any means of expression in Hebrew, Greek, Latin or Arabic, classical or medieval, before about 1400," adding that if even such rights existed, "no one could have known that there were." Similarly, Benjamin Constant stated, "The ancients … had no conception of individual rights."
However, more recent scholarship has challenged notions that rights did not exist in the ancient world.
Stephen Kinzer, a veteran journalist for The New York Times and the author of the book All The Shah's Men, writes in the latter that:
The 40 Principal Doctrines of the Epicureans taught that "in order to obtain protection from other men, any means for attaining this end is a natural good" (PD 6). They believed in a contractarian ethics where mortals agree to not harm or be harmed, and the rules that govern their agreements are not absolute (PD 33), but must change with circumstances (PD 37–38). The Epicurean doctrines imply that humans in their natural state enjoy personal sovereignty and that they must consent to the laws that govern them, and that this consent (and the laws) can be revisited periodically when circumstances change.
The Stoics held that no one was a slave by nature; slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca the Younger wrote:
Of fundamental importance to the development of the idea of natural rights was the emergence of the idea of natural human equality. As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca. ... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it." Cicero argues in De Legibus that "we are born for Justice, and that right is based, not upon opinions, but upon Nature."Cicero, De Legibus (Keyes translation), book 1, section 28.
Modern One of the first Western thinkers to develop the contemporary idea of natural rights was French theologian Jean Gerson, whose 1402 treatise De Vita Spirituali Animae is considered one of the first attempts to develop what would come to be called modern natural rights theory.Tuck, Richard. Philosophy and Government 1572–1651 (1993), pp. 25–27.
The Polish-Lithuanian union made a natural rights case at the Council of Constance (1414–1418), led by Paulus Vladimiri, rector of the Jagiellonian University. He challenged legality of the Teutonic Order's crusade against Lithuania, arguing that the Order could only wage a defensive war if pagans violated the natural rights of the Christians. Vladimiri further stipulated that infidels had rights which had to be respected, and neither the Pope nor the Holy Roman Emperor had the authority to violate them. Lithuanians also brought a group of Samogitian representatives to testify to atrocities committed by the Order.
The Stoic doctrine that the "inner part cannot be delivered into bondage"Davis, David Brion (1966). The Problem of Slavery in Western Culture. Cornell University Press, p. 77. re-emerged centuries later in the Reformation doctrine of liberty of conscience. In 1523, Martin Luther wrote:
17th-century English philosopher John Locke discussed natural rights in his work, identifying them as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the Virginia Declaration of Rights, "all men are born equally free", and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity."Maier, Pauline (1983). American Scripture: Making the Declaration of Independence. New York: Alfred A. Knopf, 1993, p. 134. Another 17th-century Englishman, John Lilburne (known as Freeborn John), who came into conflict with both the monarchy of King Charles I and the military dictatorship of Oliver Cromwell, argued for level human basic rights he called "freeborn rights" which he defined as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.
The distinction between alienable and unalienable rights was introduced by Francis Hutcheson. In his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the Declaration of Independence, stating: "For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. ... Unalienable Rights are essential Limitations in all Governments." Hutcheson, however, placed clear limits on his notion of unalienable rights, declaring that "there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest public Good."Hutcheson, Francis (2004), An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises (Indianapolis), pp. 192, 193. Hutcheson elaborated on this idea of unalienable rights in his A System of Moral Philosophy (1755), based on the Reformation principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable". Hutcheson wrote: "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."Hutcheson, Francis. A System of Moral Philosophy. London, 1755, pp. 261–262.
In the German Enlightenment, Hegel gave a highly developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. According to Hegel, the same would not apply to those aspects that make one a person: