Natural Rights And Fundamental Defense Of Liberty - Term Paper Example

Natural Rights And Fundamental Defense Of Liberty The question of whether natural rights can be justified is paradoxical as natural rights need no justification otherwise they would not be universal and unable to stand as a fundamental defense of liberty for the individual as proposed in the context of Enlightenment. In positing natural rights as foundational, their basis is in “existence” or life as experienced through the autonomous individual. The categorical imperative as outlined by Kant is expressed through the 'a priori' of moral consciousness which can be seen in examples of later declarations of human rights that seek to articulate or delineate “the universal rights of man” as an expression of the moral sentiment of humanitarianism. As such, there is a division between the concept of natural rights as outlined by John Locke and others, and the later frameworks of human rights such as the Universal Declaration of Human Rights. In the natural rights framework, autonomy is fundamental to individualism but the concept of natural rights is not an expression of the categorical imperative, for natural rights require no a priori other than human existence. In requiring a developed moral consciousness as an a priori of natural rights, one would limit the sense in which they would be fundamental to existence. Thus, rights would have to be developed in primitive cultures, rather than them being naturally present in the fundamental dignity of the human being. This important distinction between the two types of rights can be attributed to Jeremy Bentham, who publicly proclaimed his opposition to the natural rights view of Locke in favor of the legal rights of the individual. In examining natural rights from the perspective of Locke and others in his tradition such as Adam Smith, the individual is endowed by nature with autonomy, and this fundamental autonomy manifests through free action, free thinking, and free living. It is a natural state and cannot be removed from human existence, as freedom is human nature. In Bentham’s views and others related to his principles of utility, human nature is a projection of whatever values are fashionable at the time. What is important is the articulation and delineation of those rights in the contemporary context so that they are recognized. Thus, the human rights frameworks such as the UDHR and others follow more clearly in the tradition of Bentham, while the Bill of Rights and U.S. Constitution are considered in the natural rights tradition of Locke. In international law, the State reserves the sovereignty that natural rights bestow upon the individual through autonomy, which limits the utilitarian approach of human rights protection through international law in practice. When looking at the categorical imperatives as defined by Kant, the important aspect in this debate is whether or not Kant allows natural rights in the sense of Locke, or follows the legalistic framework represented in Bentham. In viewing the developed moral consciousness as an a priori for the concept of rights, the categorical imperative gives rise to all of the categories of human rights we see in the Universal Declaration of Human Rights (1948), the European Convention on Human Rights (1954), the International Covenant on Civil and Economic Rights (1966), and other UN conventions. These are, in fact, the perfect articulation of human rights within the framework of the moral consciousness of humanism. Yet, they are not based in the natural rights tradition, which believes the further one gets into articulation of rights, the further one travels into abrogation of natural rights. This is also logical: as the State becomes more infringing on the individual, and the moral consciousness of the individual is more developed through the concepts of natural rights as understood politically, there is a proliferation in international law of the number of rights that need to be protected, as the number of violations by the State increase. In Bentham’s view, this is also a fundamental activism and resistance thus to be encouraged, but natural rights advocates would resist on the fundamental autonomy of the individual and not by appeal to the rights framework itself. This, too, is critical to understanding the human rights debate and its successes / failures in modernity. The natural rights view opposed excessive delineation or articulation of the rights by preferring to rest the burden of proof on the State, rather than the individual. This is best shown in the 9th Amendment to the U.S. Constitution, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” (Legal Dictionary, 2010) Where are these natural rights retained? They are fundamentally inherent to the sovereignty of the individual or the natural autonomy of man. From this basis, the individual can always resist unjust State authority, as in the example of Henry David Thoreau – from his or her moral consciousness. Yet, the bias of the moral consciousness can vary, reading from Hume to Kant, thus making it an untenable a priori for natural rights concepts. As morals are expressed in legislation, legal rights provide a framework for the categorical imperatives of Kant, not natural rights. Natural law is derived and not inherent in Kant. This is proved by Kant’s denial of existence to free will, seeing it only as derivative of the moral consciousness. In natural law theory, the natural rights are inherently co-existent with the will, but the will can be conditioned and is not always by nature free. Therefore any justification given for the existence of the natural rights of man in this school of thought is not made on the basis of free will being equally characteristic of individual autonomy in an ideal state, for the practical state of experience contradicts this. In Critique of Practical Reason, Kant writes: “Lest anyone should imagine that he finds an inconsistency here when I call freedom the condition of the moral law, and hereafter maintain in the treatise itself that the moral law is the condition under which we can first become conscious of freedom, I will merely remark that freedom is the ratio essendi of the moral law, while the moral law is the ratio cognoscendi of freedom. For had not the moral law been previously distinctly thought in our reason, we should never consider ourselves justified in assuming such a thing as freedom, although it be not contradictory. But were there no freedom it would be impossible to trace the moral law in ourselves at all.” (Kant, 1788) This is regarded as the paradox of Kant’s view of free will – he cannot prove it, but accepts it as the a priori for the development of moral consciousness. Thus, free will is fundamental but an aspect of faith in the context of the system and required by logic. On the contrary, the legal rights derived from the developed moral sense are more distinct in articulation. One can compare this also to the body of case law and interpretation that exists over the application of natural rights in the day to day life of society over centuries. The legal case law is a clear expression of the moral interpretation, but the basis is in natural rights, and the assumption – why there even is a crime in the individual sense - is free will and choice. In the context of defense of liberty from State violation of natural rights and human rights, there is also a difference. The natural rights form the basis for revolution, and the removal of State sovereignty through popular expression. Moral rights or human rights in the legal framework of international law, can only be applied efficiently in the sense of Bentham through legal frameworks of enforcement. Therefore, if even Kant cannot find a basis from which to prove the existence of free will, yet nevertheless takes it as a basis of the moral consciousness, this is akin to saying that natural rights cannot be justified because they are fundamental, inherent, and self-evident in the natural existence of man. Yet, it does also allow the possibility of free will as a justification for natural rights, and thus the moral consciousness through which documents such as the Bill of Rights were drafted express the natural rights of man through the temporal bias of the moral consciousness. However, Locke denies this, in his Essay “On Power.” “Clarity of language, Locke proposed, would forestall the vaunted philosophical dispute about ‘free will.’ Since the will is just a power to contemplate possible actions in light of our mental preferences regarding them while liberty is the further power to perform actions in accordance with these preferences, it would be a category mistake to attribute one power to the other. It is only the agent that has the power to will and the power to act, so it is only the agent that is free, not the will”. [Essay II xxi 14-16] (Kemerling, 2001) Through clarity of language, natural rights remain inherent in the autonomy of the individual, simultaneously expressed by will, free or not free, conditioned or not conditioned. In this manner, free will is not a suitable basis for justifying natural rights, because the will is sometimes conditioned or not free as a fundamental characteristic of existence. In bringing up determinism or fatalism, Locke accepts the danger that the will can be conditioned by a higher causality in ways beyond the individual’s existential control. “Will theorists maintain that a right makes the rightholder ‘a small scale sovereign.’ (Hart 1982, 183) More specifically, a will theorist asserts that the function of a right is to give its holder control over another's duty... Interest theorists disagree. Interest theorists maintain that the function of a right is to further the right-holder's interests... Influential will theorists include Kant, Savigny, Hart, Kelsen, Wellman, and Steiner. Important interest theorists include Bentham, Ihering, Austin, Lyons, MacCormick, Raz, and Kramer.” (Stanford, 2010) Thus, Locke’s concept of natural rights need no justification in either will or interest theories, because they are universal, self-existent, and a priori. Jeremy Bentham openly states “natural rights are nonsense on stilts” and natural rights have no place in the utilitarian theory of John Stewart Mill for the same reason, as they are more interested in the contemporary articulation or expression of the moral consciousness as derivatives of mind and culture. “Aristole's theory of slavery is found in Book I, Chapters iii through vii of the Politics, and in Book VII of the Nicomachean Ethics. Aristotle raises the question of whether slavery is natural or conventional. He asserts that the former is the case. So, Aristotle's theory of slavery holds that some people are naturally slaves and others are naturally masters. Thus he says: ‘But is there any one thus intended by nature to be a slave, and for whom such a condition is expedient and right, or rather is not all slavery a violation of nature? There is no difficulty in answering this question, on grounds both of reason and of fact. For that some should rule and others be ruled is a thing not only necessary, but expedient; from the hour of their birth, some are marked out for subjection, others for rule.’" (Uzgalis, 2003) In positing and apologizing for natural slavery, one can find no basis for natural rights in Aristotle, nor their justification, which simultaneously posits equality. In summary, one can conclude that if natural rights exist as delineated they are universal, self-evident, and based on the autonomy of the individual as experienced as a fundamental aspect of being. These rights need not be articulated in legal frameworks to be retained by the individual, and are the fundamental check to State power as exercised through authority over the individual. Natural rights transcend the moral consciousness and can encompass a broad range of divergent moralities within their framework. Thus, natural rights cannot be derived from or justified by any basis other than faith in the individual self. Sources Cited: Kant, Immanuel translated by Thomas Kingsmill Abbott (1788). The Critique of Practical Reason. Philosophy eServer. Retrieved from http://philosophy.eserver.org/kant/critique-of-practical-reaso.txt Kemerling, Garth (2001). A Guide to Locke's Essay - Human Action. Philosophy Pages. Retrieved from http://www.philosophypages.com/locke/g08.htm Legal Dictionary (2010). Ninth Amendment. The Free Dictionary. Retrieved from http://legal-dictionary.thefreedictionary.com/9th+Amendment Wenar, Leif (2010). Rights. The Stanford Encyclopedia of Philosophy. Retrieved from http://plato.stanford.edu/entries/rights/ Uzgalis, Bill (2003). Some aspects of Aristotle's theory of slavery. Philosophy Department - Oregon State University. Retrieved from http://oregonstate.edu/instruct/phl302/distance_arc/las_casas/Aristotle-slavery.html Read More