Rights and how to protect them

Janusz Grygienc at all, Human Rights and Politics (Warsaw: Erida), 2013

Locke’s Second Treatise of Government lays the foundation for a fully liberal order that includes representative and limited government, and that guarantees basic civil liberties. Though future thinkers filled in some gaps left in his doctrine, such as division of powers between executive and judicial branch of government, as well as fuller exposition of economic freedom and human rights, it is Locke, who paves the way for others. The article reviews the Treatise, paying particular attention to his ingenious way to render absolute power illegitimate and to create an order that breeds citizens, not subject. In this, the article claims, Locke is a Whig rather than a continental liberal. He worries about state omnipotence and the threat it poses for citizens. Though resorting to an abstract construct—state of nature—he still is a common sense, English thinker, far from a continental reformer who would thoroughly redesign the existing order.

2023

Nowadays, the idea that man as such has rights is almost evident. It is also clear that these rights must not be infringed by others and above all by those who hold political authority. The contemporary debate concerns rather what these rights consist of or what their content is. Even autocratic regimes pay the kind of homage that vice pays to virtue by making hypocritical statements that they violate in practice. There is even a paradoxical correlation: the more declarations of human rights a regime subscribes to, the more likely it is that serious violations of these rights will occur. It is hard for us to imagine that man as such has not always been considered a subject of rights. The ancients, however, did not recognize the rights of man as a man, but only as a citizen. Medieval and even modern people throughout the Ancien Régime thought that rights depended on the body politic, the stance in office or “the corporation” to which one belonged; we can best describe them as “privileges.” Obviously, there are great difficulties in explaining the basis and even the nature of the actual rights that man has as a man, as it may seem that, in the absence of some basic social institutions or civic framework, their content cannot be specified. This is why some think that without a minimum of social context these human rights are as mythical as witches and unicorns. Even these thinkers, however, do not deny that men are holders of rights; they just uphold that rights presuppose a historical and political framework. How is it possible that, suddenly, man became an obvious subject of rights? To understand this, it is important to note that there was a radical shift in emphasis in seventeenth-century political philosophy. Before, citizens had, both in moral life and in civic life, certain natural duties, but from then onwards man was mostly the undeniable holder of certain rights. Natural duties were those precepts of natural law that had been identified by the medievals. For example, when Thomas Aquinas considers what the precepts of natural law are, he begins by saying that they are found when, through practical reasoning about what is good for us, we realize that it is good to live rather than to die, or develop our capabilities instead of not doing so. There is thus a natural precept about the preservation of life and there are also various precepts concerning what is necessary for our well-being as human beings, such as living in harmony with others in our community. This is different from saying that we have a natural right to live rather than die, or a natural right to seek our own well-being. It is, above all, very different from saying that the justification of political society is that political society safeguards our natural rights instead of merely allowing us – as social creatures by nature – to fulfill our natural duties to others and to God. This difference is inaccurately described by those who qualify modern rights as “subjectivist” or “individualist”, as they are concerned with emphasizing the freedoms and entitlements of the individual against the rival forces of authority, other individuals and, ultimately, man’s natural state. It is one possible way of describing the difference between the moderns and the ancients, but not the most accurate. Not everyone recognizes the novelty of rights. Some find the idea so self-evident that they find it difficult to admit that it is not very ancient, not to say eternal, and retrospectively discover man’s natural rights where we find above all natural duties arising from natural law. Indeed, there are at least three ways of blurring the difference between natural duties arising from natural law and the new modern natural rights. The first consists in confusing a natural right with what is permissible and not punishable in certain circumstances, such as taking what is necessary for subsistence, or resisting aggressive forces. A second way is to judge that certain moral injunctions, such as giving alms or the prohibition against murder, correspond to a natural right, like the right to assistance or to life. A third confusion is to see natural rights in what are natural obligations—for example, as if the duty to obey God before men was a right to rebellion. This shift occurred in the seventeenth century. However, rights and duties are very different and to better understand this difference we need, at the very least, a genealogy of the shift in emphasis from natural duties (which emerge from natural law) towards natural rights (which emerge from man’s natural state). When does this start? Was it already with the medievals, or even earlier, with the Roman jurists? Nothing is more difficult than dating a major change in ideas. Whatever the case, the shift in emphasis from natural duties to natural rights can be said to be consummated when the role of political authority becomes that of securing the natural rights of man. It is obvious that the change took place during this process. Currently, political discourse and even conversation among citizens proceed as if it was evident that human rights must be untouchable, or at least that they “trump” other considerations. We also assume that a political authority that systematically violates human rights is detestable and illegitimate and must be removed. Hobbes is perhaps the originator of this shift in emphasis from duties to rights, but Locke is the first to argue that the new natural rights that man has as such by his nature are not lost in civil life. If we never lose them, this imposes severe limits on the scope of governmental action. Locke is therefore the first theorist in the modern tradition of limited government and the inalienable rights of man.

The problems like what kind of rights people have over what, and when and how these rights can be defined as natural rights and should be protected have always been a discussion topic in the history of philosophy, and they are likely to remain so in the future. This paper presents the views of two philosophers who are seeking answers to these questions. According to Hobbes people have natural rights, but because they are not secured, there is always a state of war. In order to protect the rights and achieve sustainability of life, people need to abandon the state of nature and agree on a social contract.

Archive for the Psychology of Religion / Archiv für Religionspychologie, 2006

It is commonly held that the idea of natural rights originated with the ancient Greeks, and was given full form by more modern philosophers such as John Locke, who believed that natural rights were apprehen- sible primarily to reason. The problem with this broad position is three- fold: first, it is predicated on the presumption that the idea of rights

John Locke (1632–1704) is among the most influential political philosophers of the modern period. In the Two Treatises of Government, he defended the claim that men are by nature free and equal against claims that God had made all people naturally subject to a monarch. He argued that people have rights, such as the right to life, liberty, and property, that have a foundation independent of the laws of any particular society. Locke used the claim that men are naturally free and equal as part of the justification for understanding legitimate political government as the result of a social contract where people in the state of nature conditionally transfer some of their rights to the government in order to better ensure the stable, comfortable enjoyment of their lives, liberty, and property. Since governments exist by the consent of the people in order to protect the rights of the people and promote the public good, governments that fail to do so can be resisted and replaced with new governments. Locke is thus also important for his defense of the right of revolution. Locke also defends the principle of majority rule and the separation of legislative and executive powers. In the Letter Concerning Toleration, Locke denied that coercion should be used to bring people to (what the ruler believes is) the true religion and also denied that churches should have any coercive power over their members. Locke elaborated on these themes in his later political writings, such as the Second Letter on Toleration and Third Letter on Toleration.

Although many recent advocates of the Lockean libertarian view of government have invoked Thomas Jefferson as their philosophical inspiration, it is clear to anyone who has read Jefferson's writings and who understands his political career before, during, and after his presidency that he

Human Rights Review, 2002