There’s a strange post at this blog that seems to reassert the hoary mischaracterizations and straw men about natural rights theory—and particularly the canard that natural rights is mysticism—while at the same time arguing in favor of what are essentially correct, natural rights-style arguments, without apparent irony.
Natural rights, the author says, “don’t come from anywhere, they ‘just are’ (like Original Sin, I suppose).” Very clever, that—but of course what the word “natural” means is simply that these rights are not merely conventional. They do not exist just because we have agreed to them; they are not simply a matter of agreement or habit. Their existence is on account of something outside of, or prior to, mere convention, in the way that, say, the human capacity for language, or sexual desire, or the law of supply and demand, are not simply products of convention, but arise from the nature of the people or the things involved. The nature of scarcity is such that when something is in demand, and there isn’t enough of that thing, its price will go up—whether we want it to, or not. That’s what the word “natural” means—indeed, that’s why we don’t call these supernatural rights. It’s precisely because they are not the products of mere fiat—neither the say-so of God or of society—but consequences of human nature. To ridicule this argument as “mysticism” is just ignorant.
The author continues: “the doctrine of negative rights...is the basis of libertarianism. But negative rights can’t be applied universally if there are some holdouts who want others to give to them without having to give to others.” Why not? Because the two things (one person’s right to be left alone, and another’s alleged “right” to pay his bills with the first guy’s money) are incompatible. Why are they incompatible? Whence comes this incompatibility? Is their incompatibility the product of mere convention or social consensus? No? Well, then, that incompatibility must be some form of religious mysticism, no...? Of course not. It’s the nature of these two claims that they are irreconcilable. And since the author agrees with “the doctrine of negative rights,” and with the principles of logic, the author concludes, correctly, that there are certain inescapable limits on political principles. This simply is a natural rights argument, whether the author recognizes it as such or not.
The author is correct that people in a society must negotiate a method of protecting individual rights—must “haggle about things like the necessity of law-enforcement and defense forces, and what they should be allowed to do, and how they should be paid for.” The reason for such negotiation is that nobody is entitled to rule us without it—that is to say, because all of us are created equal, with certain inalienable rights, including the right to government by consent! This is, again, a natural rights argument.
I can’t easily understand the weirdness of being ridiculed for holding what appear to be precisely the same positions as the author of this blog. The only thing I can think is that the term “natural rights” has often been hijacked by actual mysticists who do believe, not in natural rights, but in supernatural rights—that is, the idea that rights exist by the mere say-so of a supernatural entity. If so, then the following needs to be clarified: philosophical naturalism—whether it be in the realm of politics or ethics or anything else—is the opposite of what are essentially the ipse dixit arguments of either, “rights are created by society’s say so” or, “rights are created by God’s say so.” Both of these share an element that is fundamentally contrary to natural law arguments: both arguments attempt to explain rights, but do so by ascribing them to essentially arbitrary decisions by a Decision-Maker: if God had chosen otherwise, we wouldn’t have rights/if society had chosen otherwise, we wouldn’t have rights. What natural law or natural rights theories actually do (or attempt to do) is to explain political society in terms of nature—that is, by avoiding the ipse dixit argument that rights exist because Somebody says so, or because that’s our tradition, or our social consensus, but by instead saying that these rights or these principles are implied by human nature and the nature of the world in which we live. As Barnett writes, “natural law describes a method of analysis of the following type: ‘given that the nature of human beings and the world in which they live is X, if we want to achieve Y, then we ought to do Z.’” Natural law or natural rights theory simply holds that the political society is bounded by pre-political principles, logical, normative, physical, and so forth. One need not agree with such a method of reasoning to admit that there is nothing mystical or arbitrary about it.