How can you believe in the existence of natural rights?

In preceding articles on this blog I have traced the evolution of the concept of natural rights from ancient reasoning about natural law to the U.S. Declaration of Independence in 1776. The importance of the Declaration’s assertion of natural rights stems from the moral support its inspiring message has provided, and still provides, to people whose rights have been infringed or insufficiently recognised in the U.S. and elsewhere in the world.

Not long after the U.S. declared independence, some influential philosophers began to cast doubt on the concept of natural rights. The famous British statesman and political philosopher, Edmund Burke, argued that “the primitive rights of man undergo such a variety of refractions and reflections, that it becomes absurd to talk of them as if they continued in the simplicity of their original direction” (Reflections on the Revolution in France, 1790).

Jeremy Bentham, the founder of utilitarianism, argued that only political rights – rights established and enforced by governments have “any determinate and intelligible meaning”. He viewed natural rights as “rhetorical nonsense, nonsense upon stilts” (Anarchical Fallacies, 1796).

Much modern questioning of the existence of natural rights stems from doubts about the existence of a Creator who could endow them in the manner suggested by the authors of the U.S. Declaration of Independence. Michael Birshan has suggested that although it is plausible that there is a system of natural rights instituted by a Supreme Being, “it is much less plausible that man could ever discover them through rational reasoning”.

Does it make sense to view natural rights as stemming from our human nature, without necessarily involving the intervention of a Supreme Being? I believe it does. I advance two overlapping lines of argument below to support the view that natural rights are inherent in the nature of humans.

The first line of argument stems from Aristotle’s observations about the natural potential for individual humans to flourish. As explained recently on this blog, an understanding of the nature of human flourishing implies that individuals have liberty to exercise responsibility for self-direction. In one of the first posts published on this blog I drew attention to the observation of Douglas Rasmussen and Douglas Den Uyl about the role of liberty in protecting “the possibility of agency or self-direction, which is central to any and every form of human flourishing”.

However, that line of argument doesn’t fully explain why you and I have strong moral intuitions that we, and Mr Xi, should recognise that other individual humans have the right to exercise the self-direction that is central to their flourishing.

My second line of argument is that a capacity for moral intuitions is inherent in human nature and has evolved over time into the ethics of respect – the foundation of natural rights - as a consequence of natural processes of cooperation for mutual benefit.

In ancient times, the existence of such intuitions was recognised by Cicero, who argued that “respect for virtue” is a ubiquitous aspect of human nature and that “nature made us just that we might participate our goods with each other, and supply each other’s wants”.

In the 18^th century, Francis Hutcheson also recognised such intuitions in discussing the “the right to natural liberty”:  “Every man has a sense of this right, and a sense of the evil of cruelty in interrupting this joyful liberty of others, without necessity for some more general good”.

More recently, intuitions about ethical treatment of others have been studied by Jonathan Haidt, a social psychologist, in The Righteous Mind: Why good people are divided by politics and religion, 2012.  The basic idea of his moral foundations theory is that our moral intuitions are related to adaptive challenges of social life that have been identified by evolutionary psychologists. Moral foundations are innate, but they are expressed in differing ways and to differing extents in different cultures. I have high regard for Haidt’s moral foundations theory but, as noted previously, in my view his survey methods exaggerate the extent that people who give high priority to liberty are undisturbed by feelings of empathy and disgust.

The best philosophical discussion I am aware of about the evolution of the ethics of respect is that by Robert Nozick in Invariances, 2001. Nozick began his earlier, and more famous, book, Anarchy, State and Utopia, by assuming a state of nature in which individuals are in a “state of perfect freedom”. He noted that he was “following the respectable tradition of Locke, who does not provide anything remotely resembling a satisfactory explanation of the status and basis of the law of nature in his Second Treatise”. Chapter 5 of Invariances does seem to me to provide a satisfactory explanation of how moral intuitions might have evolved naturally to support the ethics of respect.

Nozick’s argument can be briefly summarised as follows:

• The higher capacities of humans, including capacities for conscious thought, control of impulses and planning, have been selected for by evolution because of the benefits they bring e.g. in enabling adherence to ethical norms.
• The use of norms to guide behaviour enables humans to extend the realm of cooperative behaviour for mutual benefit beyond what would otherwise be possible.
• Cooperative behaviour for mutual benefit includes, among other things adherence to norms of non-interference – refraining from murdering, enslaving and stealing from others – provided they are willing to reciprocate. 
• The impetus to extend the sphere of voluntary cooperation for mutual advantage beyond the immediate family or group is the perception that this brings benefits greater than can be obtained otherwise e.g. by involuntary exchanges. That has been an important component of the history of ethical progress, even though there has been much backsliding
• Evolution may have shaped humans to enjoy cooperative activity. A reputation for adhering to norms of cooperative behaviour brings rewards by attracting further cooperation, and may have conferred reproductive advantages.
• The internalisation of norms enables them to be followed even when no-one is watching who can sanction deviations. Internalisation brings ethics into play. Something other than (or in addition to) punishment by other people must support rules if they are to become ethical principles or values.
• The evaluative capacities of humans enable them to generalise from different experiences of cooperative behaviour for mutual benefit and to identify common properties in a range of experiences. In turn, those abilities make persons less prone to the push and pull of desires and more prone to feel uncomfortable when their evaluations are discordant. (An example of the latter is conflict between a desire to enforce traditional norms relating to religious observance and to advance norms of non-interference.)
• Moral progress involves, among other things, shrinkage of the domain of mandatory morality to enable a domain of liberty and personal autonomy to be established, and for the ethics of respect to emerge. 

Nozick sums up:

 “if conscious self-awareness was selected for because it makes us capable of ethical behaviour, then ethics, even the very first layer of the ethics of respect, truly is what makes us human. A satisfying conclusion. And one with some normative force” (p 300).

Since the ethics of respect entails recognition of Lockean rights, Nozick’s naturalistic explanation implicitly recognises that such rights are natural.

Conclusion

It makes sense to believe that natural rights are inherent in the nature of humans. Individual humans have a natural right to exercise the self-direction that is central to their flourishing. Natural rights have normative significance as an outcome of a long evolutionary process involving development of moral intuitions, social norms and evaluative capabilities. That process explains why you and I have moral intuitions that we, and Mr Xi, should abide by the norms of liberty that maximize the opportunities available for all to flourish.

Why did the US Declaration of Independence specify an unalienable right to the pursuit of happiness?

Given that the United States was founded by politicians, is there is any point trying to understand why any particular words were included in the Declaration of Independence? I think there is.
The politicians who drafted the Declaration in 1776 seem to have been more thoughtful and principled in their approach than many contemporary politicians engaged in similar constitutional issues e.g. Brexit. More importantly, even if we  think the founders were engaged in a self-interested bid for power, in preparing their Declaration they were seeking the support of American colonists, so it was in their interests to express sentiments that would attract widespread support within those communities.

Thomas Jefferson, who wrote the first draft of the Declaration, maintained later that “it was intended to be an expression of the American mind”:

“All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.”

A copy of an extract from Jefferson's draft:

The words relating to an unalienable right to pursuit of happiness were unchanged in the various drafts of the Declaration. Rather than pondering whether those words were borrowed from one source or another, it may be more illuminating to focus on why the ideas expressed by those words would have appealed to the intended audience of American colonists and their sympathisers.

The idea of individuals being “endowed by their creator” with “unalienable rights” would have appealed to numerous followers of John Locke among American colonists. Unalienable (or inalienable) rights continue to exist even when not recognized by governments; such natural rights cannot be taken away, sold, or given away. Locke’s view that the existence of a natural right to liberty provided justification for the overthrow a tyrannical government added philosophical support to the desire of colonists free themselves from British rule.

Was “pursuit of happiness” included merely as a rhetorical device? You and I might argue that a right to liberty implies a right for individuals to pursue happiness in whatever way they choose. However, some historians have suggested that in 18^th century America there could have been a tendency for liberty to be interpreted in terms of the classical republican tradition of political participation, rather than in Lockean terms of freedom from violation of natural rights (see Darrin McMahon, Happiness, a history, p 324). In that context it seems to me that recognition of a natural right to pursue happiness might have been seen to offer additional protection e.g. in discouraging governments from attempting to control religious beliefs.

Darrin McMahon’s discussion of the meaning of “pursuit of happiness” in 18^th century America aids understanding of why it would have been widely viewed as a natural right at that time. He notes that John Locke wrote of natural rights to “life, liberty and estate” rather than life, liberty and happiness. Nevertheless, Locke saw pursuit of happiness as an important feature of a divinely orchestrated natural world in which individuals seek pleasant sensations and have differing tastes. Locke’s view of happiness combined hedonism with goodness, the exercise of practical wisdom, and spirituality. He suggested that the “constant pursuit of true and solid happiness” … “which is our greatest good” … frees us “from any necessary determination of our will to any particular actions”. Locke saw heaven as offering the greatest of all pleasures.

McMahon also notes the important influence of Scottish Enlightenment philosophers, particularly Francis Hutcheson, in 18^th century America. As noted in the preceding article on this blog, Hutcheson argued that humans possess a moral sense. We can obtain happiness by doing good!

Carli Conklin has suggested the English jurist, William Blackstone (1723 - 1780) as the source of another influential view about pursuit of happiness in 18^th century America (‘The Origins of the Pursuit of Happiness’, Washington University Jurisprudence Review, 7/2, 2015). The founders strongly disagreed with Blackstone’s belief that the British parliament remained a supreme authority over the colonies. However, they agreed with him about natural law and the pursuit of happiness, and may have seen advantage in drawing on those views to highlight an inconsistency in his position.

In his Introduction to Commentaries on the Laws of England, Blackstone argues that individual pursuit of happiness is the foundation of natural law:

 “For [the Creator] has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it can not but induce the latter. In consequence of which mutual connection of justice and human felicity, He has not perplexed the law of nature with a multitude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his own happiness.” This is the foundation of what we call ethics, or natural law.”

The views of Benjamin Franklin about pursuit of happiness seem to draw together many threads of thinking on this topic in 18^th century America. Carli Conklin quotes his views as follows:

‘Benjamin Franklin stated “[t]he desire of happiness in general is so natural to us that all the world are in pursuit of it” and although men may attempt to achieve happiness in different ways, the reality is that “[i]t is impossible ever to enjoy ourselves rightly if our conduct be not such as to preserve the harmony and order of our faculties and the original frame and constitution of our minds; all true happiness, as all that is truly beautiful, can only result from order.” Therefore, according to Franklin, if we pursue happiness through passion instead of reason, we achieve only an “inferior” and “imperfect” happiness, because “[t]here is no happiness then but in a virtuous and self-approving conduct.” Indeed, Franklin argued “the Science of Virtue is of more worth, and of more consequence to [man’s] Happiness than all the rest [of the sciences] put together.” Furthermore, Franklin stated, “I believe [God] is pleased and delights in the Happiness of those he has created; and since without Virtue Man can have no Happiness in this World, I firmly believe he delights to see me Virtuous, because he is pleas’d when he sees me Happy”.’

Conclusions

The US Declaration of Independence specified pursuit of happiness as an inalienable right because the founders knew that sentiment would attract widespread support among American colonists and their sympathisers. “Pursuit of happiness” was more than an attractive rhetorical device in a context where an inalienable right to liberty might have been interpreted in civic republican, rather than Lockean terms. 
Given the meaning of the pursuit of happiness in 18^th century America - influenced by Locke, Hutcheson, Blackstone and Franklin, among others – it is easy to understand why it would have been widely recognised as a natural right. 
Pursuit of happiness was widely perceived in terms that have a great deal in common with the activity of human flourishing, as perceived by Aristotle and his followers.