No, by nature you have no rights to anything
Why we aren't born with rights. Rights as a social construction. About natural law versus natural rights. About innate moral modules and our ingrained sense of justice.
The previous newsletter was about human dignity. I began that article with the first article of the Universal Declaration of Human Rights:
All human beings are born free and equal in dignity and rights.
I came to the conclusion that we are not born with equal dignity. It's such a fuzzy concept that it's better not to use it. It's better to say that we are born with empathy. That you think we are morally bound to respect each other's autonomy. And if you're religious, you may think we should respect the creation. Anyone who uses the concept of human dignity must explain what he means.
In this article, I'm going to argue that we're not born with rights either. Rights are, by definition, an institution, a social construct.
Natural law and natural rights
Anyone who takes a natural law position believes, in my opinion, that laws of nature also relate to human relations.
There are all kinds of laws of nature, such as the law of conservation of energy. There are no laws of nature for the behaviour of living things, but certain rules of thumb do apply. Processes that we cannot always explain well, but that are very common and that can predict behaviour very well. As long as we see those "laws" of nature as an explanation for human behaviour, I see no objection. We give our own children more than anyone else's. That's part of the process of kin selection, a natural process that can explain and predict behaviour. You can easily consider that process as part of natural law.
As long as we limit ourselves to explanation, I see no objection. But it gets more difficult when we draw normative conclusions from natural law. If we think that certain behaviour is necessary, because nature prescribes it. Take the process of kin selection. If you do not leave your inheritance to your nephews and nieces, but to the Catboat, or to a nature conservation organisation, you will violate the process of kin selection. But we can't morally challenge that bequest on the basis of natural law. It is not intrinsically wrong behaviour. If you think it is, you take a teleological position. We’ll read more about that later.
There is natural law, but there are no natural rights. That's what this article boils down to.
First of all, we need to know what a right is and how rights arise. I argue that there are multiple layers: moral intuitions, duties, and on top of that rights. As soon as we talk about rights, we are no longer talking about nature, but about social agreements. I'm going to show that our sense of justice has both a natural and a cultural layer. Then I try to explain that many legal philosophers confuse our sense of justice with innate rights. An important reason is that our civilisation has been based on innate rights for about 2,000 years. In doing so, we lose sight of the fact that a civilisation can also thrive without 'natural' rights. I then take a run-up to modern thinking about natural rights and fundamental rights as it was developed in the 17th century. That's what the next newsletter will be about.
What is a right?
If you have a right, you can do something. You don't have to, you can. You have the liberty to use it, or not. If you are entitled to an ice cream, you can have an ice cream, but you don’t have to. And you don't need other people's permission.
If you have a right, you can do something. Doing it can also include thinking, saying, getting, or keeping something. You can hopscotch, think ghosts exist, say it stinks here, get a glass of water, and keep your own hair.
A right always involves another. If you are the only one in the world, your rights have no meaning. You may well find that you are the only earthling who has the right to free speech. But there is no one who can listen to you, and there is no one who can possibly silence you. Your right to free speech doesn't matter if no one else is there.
The other person has an duty to you, if you have a right. That duty may consist of the other doing something, or not doing something. They may have an duty to give you a glass of water, or to stay away from your hair.
Thus, one's right creates another's duty. But it does not apply the other way around: a person's duty does not automatically create another's right. You may feel obligated to greet the people in the elevator when you enter it, but no one has a right to be greeted.
But where do your rights come from? That is what we will look into now.
Rights in prehistoric times
Jean-Jacques Rousseau (1712-1778) did not know much about hunter-gatherers in his time, but he did speculate about man in the state of nature.
Rousseau's peaceful man of nature has simple virtues, he has simple needs that he manages to satisfy without significant difficulty. There is no such thing as scarcity. He doesn't think much about the future, because he doesn't have any major worries. Possession doesn't mean much to him, because there is no scarcity. He knows compassion, because he is empathetic enough to recognise other people's suffering and is willing to help.
His desires never extend beyond his physical wants; he knows no goods but food, a female, and rest; he fears no evil but pain, and hunger; I say pain, and not death; for no animal, merely as such, will ever know what it is to die.
— Jean-Jacques Rousseau, Discours sur l'origine et les fondements de l'inégalité parmi les hommes (1754)
Man was doing so well in the state of nature, Rousseau argued, that at some point overpopulation began. Then the misery began, because then came scarcity. Man had to learn to anticipate, to innovate, and he started growing and processing his own food. With scarcity came ownership of land, because why work the land for food if you weren't sure you could reap the benefits yourself? With the ownership of land came agreements, laws and regulations and a higher authority that watched over the rules. People worked together, there was division of labour, there were conflicts, and man discovered the art of deception and trickery. The original peaceful way of life and the independence of man was a thing of the past.
In the state of nature, there may have been rights, but they hardly mattered. Everyone got what was due to them, without coming into conflict with others. They had freedom, but that was not seen as a right, because there was no one around who was aiming for your freedom.
Right of ownership was the first right that arose when there was scarcity. It is therefore also the first right that is not part of natural law, according to Rousseau. Because natural rights are the rights that apply in the state of nature and that is already a thing of the past once property is created.
Moral modules
Rousseau romanticised, but he wasn't far off. As we shall see later (in the series on morality), hunter-gatherers possessed the same moral modules that we still have. Ownership is one of those modules.
What do I mean by moral modules? In cognitive psychology, a module represents a specialised routine that our brains use to solve cognitive problems. The social psychologists Jonathan Haidt and Craig Joseph have suggested that we might also use these modules for moral judgments. Sociologists, biologists, anthropologists and psychologists independently identify largely overlapping moral themes to which humans (and animals) react similarly regardless of culture or upbringing. I already mentioned ownership. What becomes property, whose property it is, or how to get it, that can differ. But all people (and many animals) recognise the phenomenon of ownership, and react negatively when someone else wants to take away a property.
Contrary to Rousseau's thought, in hunter-gatherer societies ownership did play a role, and there was also scarcity. But the need for rules increased significantly in the agrarian revolution, as people started living in settlements and property began to play a greater role.
The origin of rights
The question of whether there were rights in prehistoric times is actually speculative: there are no written sources. But even in the most primitive societies, rules will have implicitly applied. Rules that, for example, prescribed what people had to do, or what they were not allowed to do. But also that certain people or groups were allowed to do, keep or receive something without asking permission. And those rules will be partly determined by our moral modules, of property for example. These moral modules can perhaps be regarded as natural law.
To avoid conflicts, there were rules that determined what counted as property, when you could get there, and when you had to stay away from it. Those rules could vary from village to village, from tribe to tribe. This happened not only with property rights, but also, for example, with regard to mating behaviour. Who was allowed with whom and when?
There was a cultural layer on top of the moral modules. In part, that was the interpretation and addition of those moral modules. For another part, these were rules and rituals that were completely separate from them. The prescribed shape of your headgear, for example, or that you had to wipe the path clean. The cultural layer created rights. Cultural rights, not natural rights.
Moral modules have no rights: they are cognitive processes. There is a difference between, for example, property as a cognitive process and as a right. The cognitive process determines that we consider certain things as our property, and other things as other people's property. It stipulates that we defend our property against anyone who wants to take it from us. And it predicts that people in general will stay away from our stuff. The right to property, on the other hand, stipulates that others must stay away from our stuff.
Rights in ancient civilisations
There can be rights based on the law of the strongest, on the basis of custom or consensus, or on the basis of a law. The law of the strongest has disadvantages: it constantly provokes conflict. Ongoing conflicts are not good for the community. A sensible community therefore developed common law.
From about 4,000 years ago, communities began to form kingdoms together. I'll discuss how that went later. Some kings found it necessary to standardise customary law in those communities. That made communities work together more easily. There came laws. Not only for the recording of common law, by the way. Also to enforce cooperation, for example, or to strengthen the position of the king and his favoured people.
One of the first sets of laws known is that of the Babylonian king Hammurabi, from the 18th century BCE. Everything was arranged: the economy (tariffs, trade), family law (marriage, divorce), crime (murder and theft) and civil law (slavery, debts). What you don't find in it are civil or political rights. Citizens had to comply with the rules, they had nothing else to say legally. At most, they could appeal to each other's reasonableness, fairness and sense of justice, but that was rarely enforceable. We actually see this pattern in all ancient civilisations, up to the Greeks.
Even the ancient Greeks did not think explicitly in terms of rights. More important to them was the question of what is just, or fair. For example, Aristoteles used the word dikaion to indicate that a society is justly or fairly ordered. However, at some point civil rights were introduced for all free, male citizens of the city. That was revolutionary. But no one thought at the time that these rights naturally belonged to the citizens. The Romans more or less felt the same way. You can read more about this in my article We don't owe our ideals of liberty and equality to Antiquity, published in April 2023. Other ancient civilisations also had hardly any civil or political rights. Judaism, for example, is primarily a doctrine of duty, as we shall see later.
These are strong indications that our natural morality is not equipped with rights, let alone civil or political rights. For example, we are not born with the notion that we have a moral right to freedom. We naturally want freedom, but a wish or a need is different from a right. Rights are cultural constructs, I repeat.
But the social order isn’t to be understood in terms of force; it is a sacred right on which all other rights are based. But it doesn’t come from nature, so it must be based on agreements.
— Jean-Jacques Rousseau, Du contrat social (1762)
But we do have an innate sense of justice, don't we?
We certainly have an innate sense of justice! I already wrote about Aristoteles who used the term dikaion for a just society . Justice is related to at least three moral modules: retribution, empathy, and distribution.
It is unwise to ignore moral intuitions. As much as we can rationalise that, for example, punishment is of no use, our intuitive urge for retribution is irrepressible. Those who steal must be punished.
I already wrote about empathy1. We cannot bear to see the suffering of another, it hurts us. We want to help. Suppose someone is lying groaning in the street. Broken hip. We naturally have three reactions:
Whatever the cause, it hurts us to see it.
We want to help. We see the provision of aid as our moral duty.
We want to know the cause. To prevent it from happening to ourselves or to someone else. And to know if there was a culprit. In the latter case, we want retribution.
I hadn't mentioned the moral module of distribution yet, but it exists. In communities there is always a degree of equitable distribution, whether or not expressed in rules. This distribution is not always egalitarian, but a situation in which one has everything and the rest has nothing is not an acceptable form of distribution. Such a situation is never sustainable for long. It is not seen as fair.
But we shouldn't exaggerate that innate sense of justice, either. You can't punish someone for something they didn't do. That makes a lot of sense to us: it has to be an innate intuition. But it is not a universal principle. Otherwise, many civilisations would not have a scapegoat. Suppose something nasty happens. We cannot pinpoint a culprit, or the culprit is too powerful to be dealt with. So an innocent person is appointed to be punished. This is incomprehensible to us.
Don't underestimate the cultural influence on our morality. Even though we experience injustice from our toes, it can still be learned. I wrote earlier about the example of Herodotos, who describes how the Kallatians cringed at the thought that others do not eat their parents' corpse, but bury it.
Rights and duties
There is no right not to break your hip. What does exist is our empathy-driven urge to help. We even translate this urge into a moral duty. Anyone who goes on and doesn't help is a bastard, we will all think so. We think the same about someone who has everything in a community, and lets the rest languish. The father who lets his daughter's rapist walk unpunished is a slacker.
We translate moral intuitions into duties. The duty to help someone in need. The duty to retaliate. The duty to stay away from other people's property.
I already wrote that one's duty does not automatically create another's right. The other way around, yes. For the right of one, there must be a duty of the other. If you have a right to life, everyone has at least a duty not to kill you and perhaps also to make sure you don't die. If you are entitled to clean drinking water, someone else (the water company) has a duty to provide you with clean drinking water. But having a duty is not enough to give another a right. You can also have a duty without anyone being able to enforce the fulfilment of that duty. A duty to take good care of yourself, for example.
But we have fundamental rights, not fundamental duties. Why couldn't it have been just duties? Because we have constructed rights. Some standards seem to us to be so important that dereliction of duty is sanctioned. Not only by punishment, but by giving the victim a powerful tool: a right. With a right, we can argue to everyone that someone else has failed in their duty, and that that injustice must be remedied. If you have a right, everyone knows that they have to stay away from your belongings, or that they have to give you the right of way at an intersection.
Civil and political rights
If rights were only codified between citizens, I wouldn’t have written this article. It is very useful that there is a code that states when something becomes someone's property, and who your heirs are if you do not arrange anything. That saves a lot of hassle.
But we also started to establish civil rights from the 18th century onwards. The citizen is entitled to this and that. To privacy, to equal treatment, a minimum wage, health care. Anyway, look at the human rights treaties. There are dozens of them.
The consequences are far-reaching. Society juridises. There is a proliferation of rights, which regularly conflict with each other. The government is being over-demanded, because it has to make it all happen. It squeaks and it creaks. The focus is shifted from a duty holder to an entitled citizen. We believe that we are entitled to anything and everything, but our duties are rarely discussed. We are going to talk about the consequences in the last episode in this series.
But what are the arguments for the existence of innate rights?
The most outspoken contemporary case for the existence of innate rights came from the devout Catholic Australian legal philosopher John Finnis (b. 1940). Finnis stated that we humans can only function fully if we have access to certain 'goods’. We have a moral duty to ensure that our fellow human beings can function fully. That gives rise to rights for those fellow human beings.
Finnis drew his inspiration from Aristoteles and Tomasso d'Aquino. Those classical natural law thinkers viewed the world teleologically: all things and events have a purpose, a destiny, just as a caterpillar will emerge as a butterfly. According to Aristoteles, we flourish through a virtuous life.
All art, skill, research, action and conscious striving is, it is assumed, directed towards a certain good; That is why it has rightly been said that the good is what everything is aimed at.
— Aristoteles, Ethika Nikomacheia (4th century BCE)
Our goal according to Tomasso d'Aquino is the pursuit of happiness through a direct relationship with God and by acting according to his will: doing good and leaving bad.
The point is: the world does not appear to be teleological, but evolutionary. We ourselves may have a will and perhaps also goals, but nature does not have them. The world moves through cause and effect based on random events, observing physical laws. Human will has little impact. There has been no evidence of a divine will or an end goal. Assume that the cosmos has no plan.
There are many other objections to the natural law tradition of Aristoteles and Tomasso d'Aquino. I've already passingly discussed most of them above. Another important objection to natural rights is that they are vague and contradictory, and that no one has managed to draw up an undisputed, definitive, exhaustive list of natural rights. That should make one think.
But not all natural law thinkers come from religious, Aristotelian or Thomistic angles. Other widely shared natural law views include:
We have a right to equal freedom by nature. But the substantiation of this is weak and seems to be specifically Western in origin.
Our rights are a derivative of Kant's categorical imperative. I will deal with these in a later newsletter. For now, assume that Kant formulated a refined variant of the golden rule. But Kant's ethics is above all a doctrine of duty. As I said, you cannot automatically derive a right from a duty.
But why do we think we have innate rights?
Thinking that we have innate rights has gradually crept in culturally. We will discuss this in detail in the next newsletter. To give you a hint: it started in the 12th century.
When the church was still in charge, there were all kinds of laws, enacted by ecclesiastical and secular institutions: moral norms, such as Christian law, and vaguer norms such as natural law, and regulations and customs of a more domestic nature that subjects had to abide by. For subjects, the word says it all, there were mainly duties. That an individual could exercise rights vis-à-vis the state or the church was unthinkable.
The moral order was still strongly determined by the traditional view that the world was ordered according to divine principles. Morality was not a choice: choice was given. Free will, a doctrine that Genesis is already beginning to talk about, consisted of two options: as God wills it, or sin. Individual morality was an inexistent combination. In a conflict between people, one could be right and the other could not, or they were both wrong. That both could be right was unthinkable at the time.
The fact that citizens could also assert certain rights by nature because of their humanity gradually crept in from the 12th century onwards. The ius naturale also traditionally took into account the decent, fair treatment of subjects. But that was above all a moral duty, a task and a limitation that virtuous administrators had to impose on themselves. At some point, it became clear that, according to the ius naturale, citizens should also be able to morally enforce decent, just treatment. From natural law to natural rights.
Of course, one could always have claims in individual cases. If one had made an agreement, one could in principle claim compliance. Possession could not be taken away by just anyone. And a person had the right to defend himself. But if the ruler decided otherwise, one had to comply. On the other hand, there was constant debate between those in power about the rights they could exercise over each other. Consider, for example, the Investiture Controversy, on the question of who had the right to appoint bishops.
The first sign that the tide was turning came from the Franciscan friar William of Ockham (1288–1347). He opposed the pope's absolute rule, citing "the rights and freedoms that God and nature have allowed" to the subjects.
Another reference to individual rights arose in response to the question of whether Muslims also have rights. Yes, the Pope said around 1250: Muslims also have rights. Note the word "also."
The French theologian Jean de Gerson (1363-1429) took it a step further, in his work De vita spirituali animae (1402). Gerson defined a right as "an ability or power that belongs to everyone for the right reason." From this he derived a natural right to self-defence against a tyrannical pope and a natural right to freedom that allows a Christian to seek his own salvation, even in a corrupt church. But Gerson also believed in the church as an ordered organic community, a mystical body. It did not occur to him that individual rights and community values could clash. He cherished both.
Individual rights remained implicit until the 17th century: a subject might argue that he had an individual and subjective right, but it was still considered part of a trade-off within natural law in which the ruler had the final say. A powerless person with a legal claim against the ruler could count on laughter at best, and on the scaffold at worst.
The change came with Hugo Grotius (1583-1645). (Actually, his name was just Huig de Groot, but he was a genteel man, so he Latinized his name.) He, too, regarded rights as part of natural law, but he regarded a right as individual and subjective in a sense. He defined a right as the ability to do something without needing permission. That's starting to look like it.
In his work De iure belli ac pacis (1625), Grotius listed a number of rights from which citizens may derive moral claims: everyone has the right to life and everyone has the right to means to maintain that life. But anyone who wants to claim such rights must respect those of others. The latter reservation is important. On the one hand, rights could not always be implemented, just as Thomas Hobbes would later argue. On the other hand, rights are part of a very broad natural law system, of which Grotius formulated a few dozen basic rules. Moreover, rights are not unconditional: for example, you can transfer them, even under duress, to tyrants or to your slaveholder.
Now it's getting exciting, but here I take a break. In the next newsletter I will discuss the controversy between Thomas Hobbes and John Locke in detail. To give away the outcome: Locke won. And we owe our fundamental rights to that. But that will come next time.
In summary
Natural rights are quite complicated. That's why I'll summarise.
With a right you have the freedom to (not) do, get, keep, think, say, etc. do something, without needing permission from someone else. A right always involves another person, who has an duty to you, if you have a right. That duty may consist of the other person doing something, or not doing something.
The question is whether we have certain rights by nature, whether we are born with them, so to speak. Many people think that we are naturally entitled to equal freedom. Others think that we have a natural right to property, to a private life, or to bodily integrity. Like you, I think they’re all important to have, but I argue that we don't have those rights by nature. Because all rights have cultural origins.
There are laws of nature (such as the law of conservation of energy). There are no laws for human moral behaviour, or we don't understand them yet. The closest thing is the process of kin selection, which we encounter everywhere in nature, and which we can also explain genetically. Very briefly: we feel the urge to reproduce, and to take care of our offspring.
But there are more. Psychologists speak of moral modules. Researchers independently identify largely overlapping moral themes to which humans (and animals) react similarly, regardless of culture or upbringing. Property is one, and retribution is another. Depending on who you ask, there are about ten in total. There will be another article in which I will go into more detail about this.
To some extent, we humans can be flexible with those moral modules, but blood is thicker than water. For example, we can live in a commune with purely collective ownership. But at some point, even in a commune, we start to commit ourselves more to certain objects, which we gradually come to regard as property. The same applies to retribution. Even if you rationally believe that retribution is only counterproductive, you will still find yourself seeking revenge in extreme circumstances.
Moral modules know no rights: they are cognitive processes. To take property as an example again: we attach ourselves to objects and consider them as our property, which others must stay away from. But it remains a moral intuition, which can be supplanted by another intuition, or by force majeure, or by cultural influences. With moral modules we can predict and sometimes (partly) explain our behaviour, nothing more. We can't derive moral precepts from it.
For the sake of simplicity, let us consider moral modules as natural law, just like gravity, for example. Can we deduce duties from that, and maybe even rights? I don't think so. Duties can be either instinctive or cultural, both under the influence of moral modules. Rights are exclusively cultural, albeit often influenced by moral modules.
Small, prehistoric communities wanted as few conflicts as possible. Habits arose, in which mutual duties and rights were given a place. Who picks up the meat today, who looks after the children, things like that. If you didn't have the duty to look after the children that day, you had the right to a day off. Gradually, these customs were formalised, especially when kings came along who had to let multiple communities work together. Laws were enacted. Of course, these laws also contained duties and rights, but this was mainly about rules of conduct between citizens, and about duties that one had towards the king. It would not occur to anyone that one could also exercise rights against their king.
Very gradually that began to tilt with the Greeks and later with the Romans. The Greeks started thinking about a just order of society. Moreover, at some point the Greeks invented political civil rights, which any citizen could exercise against the state. The Romans had something similar, and they developed the idea of a normative natural law. But that remained an abstraction: ius gentium, the right of the peoples, was above all a theoretical concept, at most a moral ideal. If a non-Roman wanted to invoke that, it would have led to ridicule. The same applied to treating your fellow citizens with dignity: that was a moral ideal, at most a moral duty, but certainly not a right.
From about the 12th century onwards, a bourgeoisie began to emerge very cautiously in Europe. Cities emerged, and economically empowered, better-educated citizens who could be a little more independent of the sovereign. At the same time, the bishop of Rome, who called himself the pope, began to seize more and more power. There were thinkers like William of Ockham who started to speak out about rights that God has given to man. Gradually, thinkers came to regard freedom, life and property as the natural rights of every human being. But until the 17th century, those rights remained implicit: a subject might argue that he had a right, but it was still considered part of a trade-off within natural law in which the sovereign had the final say.
And then King Charles I got into trouble in England. That's where we'll start next time.
Further reading
— Jean-Jacques Rousseau, Discours sur l'origine et les fondements de l'inégalité parmi les hommes (1754)
— Jean-Jacques Rousseau, Du contrat social (1762)
— Richard Tuck, Natural rights theories (1979)
— John Finnis, Natural law and natural rights (1980)
— Jeremy Waldron, Nonsense upon stilts (1987)
— Brian Tierney, The idea of natural rights: Origins and persistence (1997)
— Rainer Forst, Toleranz im Konflikt. Geschichte, Gehalt und Gegenwart eines umstrittenen Begriffs (2003)
— Chin Liew Ten (ed.), Theories of rights (2006), in particular:
H.L.A. Hart, Are there any natural rights? (1955)
H.L.A. Hart, Natural rights: Bentham and John Stuart Mill (1982)
Joseph Raz, On the nature of rights (1984)
Joel Feinberg, In defence of moral rights (1992)
Richard Arneson, Against rights (2001)
— Jonathan Haidt, Craig Joseph, The moral mind: how five sets of innate intuitions guide the development of many culture-specific virtues, and perhaps even modules, in: Peter Carruthers et al. (ed.), The innate mind, Volume 3: Foundations and the future (2007)
— Larry Siedentop, Inventing the individual (2014)
— Nicholas Christakis, Blueprint. The evolutionary origins of a good society (2019)
To conclude
This was an opinionated article. I take a personal, possibly controversial position. Since the subject is tricky, and I'm pioneering a bit here, I found this a difficult article to write. I am therefore open to criticism and additions. If that leads to significant improvements, I will review and republish the article.
This is the fourth newsletter in a series on human rights and toleration. The series consists of the following articles:
Was drawing up human rights really such a good idea?
Anyone who questions the existence of universal human rights can count on outrage. Yet that's exactly what I'm going to do here.Our universal human rights are dated and not universal
About the creation of the Universal Declaration of Human Rights. Why large parts of the world can actually shrug their shoulders about human rights.How to lose your dignity
Out of human dignity, everyone can make their own sense. This is convenient when looking for universal human rights. About the conflicting meanings of human dignity, and why we aren't born with it.No, by nature, you have no rights to anything
Why we aren't born with rights. Rights as a social construction. About natural law versus natural rights. About innate moral modules and our ingrained sense of justice.Against human rights
Anyone who is sceptical about human rights does not make himself popular. But since the 17th century, criticism of human rights has not been soft. On criticism from Hobbes, Bentham, Marx, the communitarians and the Confucianists.Down with human rights!
The negative effects of universal human rights predominate. We have to get rid of them. There are alternatives. We can move from rights to duties. From a legal to a moral dialogue.
Skopje, 17 June, 2023
I use the word empathy here, because that is the most commonly used term in the literature. But perhaps it is better to speak of compassion. See about the distinction:
Paul Bloom, Against empathy (2016)
Ignaas Devisch, Het empathisch teveel: op naar een werkbare onverschilligheid (2017)