This paper examines the ongoing debate between two fundamentally opposing conceptions of human rights: the natural rights tradition, which holds that certain rights are inalienable and intrinsic to human nature, and the legal positivist tradition, which regards rights as social and legal constructs with no independent moral foundation. Drawing on scholars including Tibor Machan, Anselm Atkins, Jeremy Bentham, and Michael Perry, the paper traces the philosophical origins of both positions from ancient Greek and Stoic thought through Christian natural law and into the modern secular era. It concludes by considering whether a synthesis of the two views might offer a more workable framework for understanding basic human rights.
"The true civilization is where every man gives to every other every right he claims for himself."
There is a modern debate, ongoing between different views of human rights and law in contemporary society, that presents two fundamentally opposing points of view. On one side are those who view certain human rights as intrinsic to the meaning of being human — inalienable for all humanity, regardless of any external social, political, or legal influences. This position is generally referred to as the natural human rights tradition. On the other hand, there is an opposing viewpoint that human rights are not essential or intrinsic, but rather socially and legally created and determined. To complicate matters further, various intermediate positions incorporate elements of both arguments.
Central to this debate is a more subtle underlying question. While the cardinal issue of what it means to be human is inherently philosophical and ethical, the debate on human rights — particularly natural or basic human rights — is intertwined with other issues, including historical views about the importance of society versus the individual, and the role of religion. One of the central forces driving this debate is the transition from a religious or theocratic culture to that of a secular society. The progressive secularization of the Western world over the past two centuries has had an enormous impact on how people interpret the basic rights and freedoms to which all humans are entitled, and on how we perceive ourselves in a world that should uphold the right to life and liberty, freedom of thought and expression, and equality before the law.
The two main opposing views are reflected in a continual scholarly debate. For example, in an article entitled "Demythologizing Natural Human Rights," B. McKown advanced the view that human rights possess no independent existence — that "they are mere creatures of law" that "are neither immutable nor permanent" (Grant, R.). In direct response, Tibor R. Machan wrote "Are Human Rights Real?", in which he denied McKown's proposition. Machan insisted that human rights are unalienable and inherent in human nature, concluding that "without the 'borders' of basic human rights defined between individuals, people would be able to harm others or rob them of their achievements all too easily" (ibid.).
The debate continued with Anselm Atkins, in an article entitled "Human Rights Are Cultural Artifacts," which rejects the idea of inherent human rights from the standpoint of evolutionary biology. Atkins argued that "a right is… something furnished, granted to, or bestowed upon someone. It comes from outside — something 'extra' to the being." He concluded: "Philosophically, the only way to found or establish such a thing as a 'natural right' is to presuppose a god who bestows and secures such rights. In the absence of a god, there can be no natural rights" (ibid.).
More recently, Fred Edwards, in an article entitled "Advance of Human Rights," published in the November/December 1998 edition of The Humanist, put forward the argument that the whole concept of human rights as we know it is an extremely late development in human history — "scarcely older than the seventeenth century" — and that, even within this context, the idea was "applied in but a few small parts of the globe to a chosen few" until around the middle of the twentieth century (ibid.).
As this brief overview illustrates, the debate is ongoing and draws from multiple disciplines and schools of thought. The central fulcrum around which these arguments rotate is the tension between those who hold that human rights are intrinsic or natural and those who hold that human rights are human creations, dependent on factors such as society and law, which override the idea of natural rights.
Basic human rights usually refer to the right to life, liberty, and happiness. These rights are sometimes extended to include the right to freedom and self-determination, the right to self-defense, and related entitlements. They center on aspects common to all humanity as human beings — which itself presents a challenge, given the various differences in contemporary interpretations of human nature.
One definition of natural or basic human rights is as follows: "Human rights or natural rights are rights that some hold to be 'inalienable' and belonging to all humans, according to natural law. The word inalienable means incapable of being repudiated or transferred to another, or 'not subject to forfeiture'" (Onelook). This definition invokes the all-important term "inalienable," which in essence means these are rights not determined by any outside agency or by social or political factors. They are intrinsic to each human being and to nature itself. For those who support the idea of natural human rights, these rights are deemed essential to the very existence of human society and to the continuance of freedom within it: "Such rights are thought, by proponents, to be necessary for freedom and the maintenance of a 'reasonable' quality of life" (Wikipedia: human rights).
Scholars in this field also point out that without basic human rights, human societies face a very real danger of being dominated by those who have power and who can manipulate laws to suit their own ends. It is therefore vitally important, for the sake of individual freedom, to maintain and argue for inalienable natural human rights. The consequences of not viewing certain rights as inalienable are significant:
"Human beings living in organized societies under civil government have many rights that are conferred upon them by the laws of the state, and sometimes by its constitution. These are usually called civil rights, legal rights, or constitutional rights. This indicates their source. It also indicates that these rights, which are conferred by constitutional provisions or by the positive enactment of man-made laws, can be revoked or nullified by the same power or authority that instituted them in the first place. They are alienable rights. The giver can take them away." (Adler, M.)
Because inalienable means "not able to be removed," inalienable rights cannot be interfered with by those who might use the law for expedient purposes. Basic human rights thus assume a certain moral fixity or gravity that defies any attempt to revoke them: "Their existence as natural endowments gives them moral authority even when they lack legal force or legal sanction. Their moral authority imposes moral obligations, which may or may not be respected or fulfilled" (ibid.).
The idea of natural law formed an essential part of Anglo-American common law. "In the struggles between Parliament and the monarchy, Parliament often made reference to the Fundamental Laws of England, which embodied natural law since time immemorial and set limits on the power of the monarchy. The concept of natural law was expressed in the English Bill of Rights and the United States Declaration of Independence" (ibid.). From a theological perspective, the Roman Catholic Church understands natural law to be immanent in nature.
The idea of natural law is also related to Libertarianism, a political philosophy that advocates individual rights and limited government. "Libertarians believe individuals should be free to do anything they want, so long as they do not infringe upon the equal rights of others" (Wikipedia: Libertarianism). Natural law is essentially grounded in the premise that ethics and morals exist beyond and greater than mankind. To fully acknowledge human rights as "natural," one must understand these rights as being "discovered" rather than created by man. Human rights created by man are extrinsic — products of legal systems, ethics, and philosophy. Natural laws, by contrast, "seek more to discover a truth that is considered to exist independent and outside of the legal process itself, rather than simply to declare or apply a principle whose origin is inside the legal system" (ibid.).
On the other side of the debate is a very different view of human rights — one that treats the idea of inalienable, "natural" rights as a fiction. For these critics, natural rights are merely a form of social construction, manufactured without intrinsic or unassailable worth. This view is expressed by the school of thought known as Legal Positivism. Applied in contemporary jurisprudence, Legal Positivism holds that laws are rules made and created by human beings, and that there is no inherent or necessary connection between law and morality. It is based on social conventions and denies any inalienable basic human rights.
"Legal positivism is a conceptual theory emphasizing the conventional nature of law. Its foundation consists in the pedigree thesis and separability thesis, which jointly assert that law is manufactured according to certain social conventions." (The Internet Encyclopedia of Philosophy)
Positivism arose in opposition to the classical idea of natural rights, "according to which there are necessary moral constraints on the content of law" (ibid.). Its rise is linked to the broader history of philosophy and ideas in the Western world. With the rise of modern science, humanity felt more confident asserting its own laws and visions, and less dependent on religious, ethical, and moral concepts inherited from the past. Natural laws came to be seen as outmoded, superseded by a more "positive" and independent mode of thought — created by human beings rather than "discovered." "The word 'positivism' was probably first used to draw attention to the idea that law is 'positive' or 'posited,' as opposed to being 'natural' in the sense of being derived from natural law or morality" (ibid.).
This viewpoint is expressed in the Pedigree Thesis, which asserts that legal validity is a function of certain social facts. Legal Positivism therefore stands in direct opposition to the tradition of natural law and represents a radical break from the idea of inalienability: "Legal positivism incorporates the separation thesis: the idea that legal validity has no essential connection with morality or justice" (ibid.). In Western philosophy, legal positivism begins with the work of Jeremy Bentham, the philosopher of utilitarianism, who in turn borrowed concepts from Thomas Hobbes.
"Greek, Stoic, and Christian roots of natural law"
"Postmodern and secular challenges to universal rights"
In the final analysis, one has to see the issue of human rights against the background of changes that occur in society's perception and social values. The emergence and dominance of a secular form of society, in contradistinction to a moralistic or theocratic society, has changed the way we see the world. However, a purely positivistic view of human rights opens the way for abuse by various power structures and denies the inalienability of basic human rights.
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