Rethinking Rights

Questioning Natural Rights with Edmund Burke

Responses to my previous article, "Paine-fully Conservative? Remembering 'Rights of Man' and the Original Left-Right Divide," have revealed widespread confusion about human rights, even amongst conservatives.

On the face of it, there is no doubt that human rights are confusing. During the Obama administration, politicians discovered that health care is a "universal human right," even though nobody throughout human history had been aware of the fact until then. Now we are told that boys who identify as girls have a fundamental natural right to use the girls' restroom. Meanwhile, schoolgirls are dehydrating themselves so they don't have to pee at school for fear of meeting biological males in the school bathrooms. Where do the rights of these girls fit into the picture?

Perhaps it is time to rethink the very concept of human rights.

Two recent events confirmed my suspicion that the left and right share common misconceptions about human rights. The first event happened after I was given a tip-off about a local mask burning event. I went to the place where the burning extravaganza was supposed to take place, only to find that it had been a rumor. Other people had also heard the rumor and showed up, and as we were searching for the bonfire that wasn't, I struck up a conversation with a couple of ladies. I asked them what being conservative meant for them. Without hesitation they replied, "The rights of the individual!"

Shortly after this I got into a discussion with conservative friends about Edmund Burke's views on freedom and how this relates to COVID-era controversies. A conservative friend who was listening in on the discussions emailed me to say that mandatory seatbelts and motorcycle helmets are an "infringement on personal freedom. . .  . People should do as they please in these areas."

In reflecting on these two conversations, I realized that in today's political climate, both the left and the right tend to assume a common vocabulary of human rights. This vocabulary, which has origins in the 18th century Enlightenment, assumes that there are certain inalienable rights that we possess as individuals and which the state is morally obligated to recognize and protect. Liberals and modern-day conservatives differ on what those rights are, but they tend to hold in common the same basic framework. For example, left-leaning individuals will argue that access to abortion and state-funded sex-change surgery is the natural right of every person, while conservatives will argue the same about gun-ownership, the right to homeschool, or freedom to worship.

What both sides agree upon is that there are certain natural rights which exist prior to any legal system. While these rights ought to be converted into civil rights, they do not ultimately depend on positive law (actual statutes) for their legitimacy.

Thomas Paine (1737-1809), who helped cement Enlightenment theories of natural rights into the American consciousness, drew a number of consequences about natural rights, including the following:

• We are entitled to individualistic rights and freedom, which are true prior to experience, tradition, and external considerations.
• Natural rights are not the same as civil rights, because they are a priori and exist prior to legal systems. (For a refresher on what is meant by "a priori," see my earlier article "Paine-fully Conservative?")
• It is the job of society to secure as many natural rights as possible, regardless of the cost.
• Our most basic human right is that of personal autonomy; consequently, we are entitled to exist in a society designed to protect choice.
• Political wisdom is not about prudential reasoning in the context of tradition; rather, it is about uncovering axioms that are necessarily true outside of experience and regardless of their impact on time and space.

Paine's nemesis, Edmund Burke (1729-1797), questioned the very idea of natural rights. Considered in the abstract, Burke argued, the natural rights of man are absolute and thus "admit of no taming and no compromise." As such, natural rights lead to a utopian disregard for human contingency. What Burke called "the real rights of man" are not natural at all, but a posteriori, the product of community, tradition, and prudential reasoning.

Burke anticipated the 20th century recapitulation of ancient Virtue Ethics, which emphasizes that tradition is the context for ethics in much the same way as language is the context for thought. It is in the actual context of lived experience, not abstract principles, that we discover whether rights or freedoms are actually virtuous for an individual and a community. From Burke's Reflections on the Revolution in France:

"I cannot stand forward and give praise or blame to anything which relates to human actions and human concerns on a simple view of the object, as it stands stripped of every relation, in all the nakedness and solitude of metaphysical abstraction. Circumstances (which with some gentlemen pass for nothing) give in reality to every political principle its distinguishing color and discriminating effect. The circumstances are what render every civil and political scheme beneficial or noxious to mankind."

Some readers sympathetic to Burke's concerns may want to know if it is possible to preserve a view of natural rights that avoids the excesses of Paine's legacy. By questioning the very existence of natural rights, aren't we engaged in a massive exercise of throwing the baby out with the bathwater?

I'm afraid that in this case there is no baby to preserve, only bathwater. From a Christian point of view, there is no doubt that we must affirm that some things are true a priori. In his address "Why I am not a Pacifist" in The Weight of Glory, C.S. Lewis showed that the laws of logic fall into the category of being necessarily true prior to experience. Moral absolutes also have an a priori character, as do most truths of mathematics. But are human rights like this?

Let us consider what it would really mean to say, for example, that "the right to private property" is a natural a priori right. That would mean that our right to property exists independently of all considerations about other human beings, and independently to how our exercise of this right impacts human and natural resources. Moreover, if the right to private property is really a natural right, then this would be as true in a migratory society as in an agricultural society, as true for a desert oasis as a forest. It is not clear how such a right is even meaningful, let alone useful. The same complications occur with other, so called, natural rights. The right to life can be abrogated through the legitimate wielding of the sword, and the right to free movement can be withdrawn in the case of prisoners, and so forth. When you factor in all the exceptions that advocates of natural rights are bound to acknowledge, then such rights die the death of a thousand qualifications. And even if natural rights are meaningful, it is not clear what methodology we could even use for verifying their existence.

From a conservative perspective, the goals that rights-language tries to preserve would better be obtained by talking about natural law and natural duties, private and public virtue, prudence, individual and communal flourishing, contingent rights granted by our tradition (i.e., the Constitution), and, last but not least, the Lordship of Jesus Christ.

Further Resources

The historian and journalist, Yuval Levin, has done us an enormous service in synthesizing Burke and Paine's dispute about rights in his 2014 book The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left. In the lecture below for the Heritage Foundation, Levin discusses the key contours of Burke's dispute with Paine.

More recently Nigel Biggar  has contributed to the scholarship on rights with his 2020 publication, What's Wrong with Rights? Last year Biggar addressed the Thomistic Institute with an overview of his scholarship on natural rights. He argues, in my view cogently, that "natural rights as absolute, lacking information by social exigency and qualification by social circumstance, and so obtaining universally, always and everywhere, do not exist."