We've had an interesting discussion for the last few days on the nature of rights. This is not the first: the Hall also had a significant debate on the subject in 2007. It's collected on the sidebar under the heading "Frith & Freedom," and is well-worth reading through on your own because we are likely to tread the same ground again. A series of the posts are by Joel Leggett, who is both a lawyer and Marine -- retired from the latter, I think, these days -- on how to interpret the relative influence of faith, philosophy, and history on the rights we enjoy.
To summarize (unwisely, no doubt; I'll surely miss something from that debate in trying to frame it in a few paragraphs), religion gave us Natural Law. Really, the concept originates as so much with the
Ancient Greeks. We have a couple of later mentions before the Middle Ages on record, such as from Cicero. The Medieval Scholastic philosophers became very interested in it. St. Thomas Aquinas formalized an Aristotelian understanding of
Natural Law, but as a subordinate to the
Eternal Law of God. Yet Natural Law remains superior to
Human Law, which has some
power but is
mutable unlike either of the higher laws. He also distinguishes all this from what he calls the
Old Law, in which he found things of quality but that were gladly replaced with the
Law of the Gospel, which you will notice is not the same as the Eternal Law (nor could it be, since it didn't once exist and now does). If you follow the link under 'Ancient Greeks' above you'll find similar traditions in other religions, but they are not our tradition: it was not informed by them, and indeed only recently have Western scholars become aware that such traditions existed.
Natural Law, in any case, does not necessarily give us natural rights. The Church did not come up with the idea of the right to keep and bear arms; nor freedom of speech in any sort of sense similar to our own; and while it does teach a kind of freedom of conscience, it has sharp limits and is bounded by error and heresy. One hears Catholics (especially Jesuits) and other Christian leaders talking of human rights, but they are not the source of them: they have simply applied religious and scriptural justifications backwards onto an inheritance for which religion was not responsible.
Natural rights are, in the sense of 'rights existing as concepts' rather than 'rights that actually exist,' a creation of
philosophy. The line of thinking runs from Aristotle (remember all the different sorts of 'equality' in the EN) through the Stoics (who deepened this idea of human equality) through Cicero. As you'll see, and as you would expect given that philosophy was almost exclusively taught within the Church during the Middle Ages, theologians were often involved. Yet we really find the first expressions of what would become the American notion of rights in John Locke, even if the roots are deeper.
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." 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."
But again, even if these foreshadowed our rights, they weren't actual rights that anyone enjoyed. To find the roots of those things coming to be, we have to look at neither religion nor philosophy but
history.
In much of Europe, the nobility and knighthood remained a separate and special class. Not so in England:
When William the Conqueror took possession of the English crown he organized it as a complete feudal state. But England had a large population of freemen in addition to the mass of the unfree and the Norman kings never made any legal distinction between knights and other freemen. The freedoms which were inherent in feudal vassalage went to all freemen as vassals, direct or indirect, of the king...
The right of all freemen to the privileges of vassals was clearly accepted in England from the Conquest, but found its first clear expression in the Magna Carta. This document was stated to apply to all freemen. It also contained in specific form a statement of the most basic of all liberties -- the right to due process of law.
Thus in England as the unfree became free they acquired the same legal status as knights of the feudal world. Individual liberty was part of the fundamental law.
He goes on to point out some exceptions to his general thesis: for example, no one had the right to 'freedom of religion' until after the Reformation; freedom of the press is likewise a much later invention (and indeed, there was no printing press in 1066).
The English kings went on to further conquests in Scotland, Ireland, Wales, and so forth; thus they spread this idea abroad.
The
right to keep and bear arms comes from
this, even though it can be philosophically defended (as I have written about extensively myself, especially
here). So too the
right to trial by a jury of your peers. So too
habeas corpus. So too did the idea of
franchise, which the Normans applied to the Thanes they came to call 'franklins,' i.e., 'a little Frank' rather than a proper one like themselves. In spite of their disdain for the Thanes, they recognized the danger of suppressing them and the wisdom of granting them knightly rights in order to maintain their consent to be governed.
The
right of freedom of religion came out of the exhaustion with the religious wars, not philosophy or religion -- though you can formulate either a religious or a philosophical justification for it.
Freedom of speech as we have it in America came from the Anarchists, as
we recently explored: it existed in a much more restricted form from the 1st Amendment, but the form we have came from a series of lawsuits defending kinds of speech that the government felt free to ban and to punish as late as Woodrow Wilson.
Freedom of the press likewise: just publishing a pamphlet describing how to use a condom was cause for arrest and prosecution until those same lawsuits brought about our current right.
Empirically you can see that real rights, actual rights, need a practical defense. They need, as I have been arguing for a couple of days now, a community, a people, who have them as values and will defend them with blood (or, in the case of the Anarchists, with effective lawsuits -- a point important to Mr. Hines).
As I said the other day, "[t]he idea that you have rights without the corresponding polity or community that defends the space in which those rights can be actualized is ahistorical and pragmatically indefensible." You will not have rights without that, regardless of whether or not you are entitled to them. Obviously I think that philosophical and religious defenses of rights are worth spending time on, since I have spent so much time on them myself. However, if you really want to have the right, you must fight for it -- and you must find people who will fight alongside you. That is the concept of frith, which was important to the 2007 debate: frith is a cognate of both friend and freedom.
